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Toward a More Elaborate Typology of
Environmental Values: Liberalizing
Criminal Disenfranchisement Laws and
Policies1
© Avi Brisman*
“You cannot separate environment from empowerment. Toxic waste
dumps are put in communities where people are the poorest, the least
organized, the least registered to vote. If you are poor you are a target
for toxic waste. If you are unregistered to vote you are a target.”2

I. INTRODUCTION
In late 2004, the environmental strategists, Michael Shellenberger and
Ted Nordhaus, set off a firestorm with their polemical essay, The Death of
* Doctoral student, Department of Anthropology, Emory University. J.D., University of
Connecticut School of Law; M.F.A., Pratt Institute; B.A. Oberlin College. Former Law
Clerk to the Honorable Alan S. Gold, United States District Court of the Southern District of
Florida, and to the Honorable Ruth V. McGregor, then-Vice-Chief Justice and current Chief
Justice, Arizona Supreme Court. I would like to thank Elizabeth Griffiths, Assistant
Professor, Department of Sociology, Emory University for her comments on an earlier
version of this Article. I would also like to thank Sidra Vitale for her assistance in preparing
this Article for publication. This Article is dedicated to Richard W. Parker, Professor of
Law, University of Connecticut School of Law, who introduced me to the fields of
environmental law, international environmental law, and administrative law, and who
inspired my thinking in these areas.
1.
The idea of a typology or taxonomy of environmental values or worldviews
originates with John S. Dryzek and James P. Lester, Alternative Views of the Environmental
Problematic, in ENVIRONMENTAL POLITICS & POLICY: THEORIES AND EVIDENCE 328 (James
P. Lester ed., 2d ed. 1995) [hereinafter ENVIRONMENTAL POLITICS & POLICY], and discussed
in infra Part III.D.
2.
PHILIP SHABECOFF, A FIERCE GREEN FIRE: THE AMERICAN ENVIRONMENTAL
MOVEMENT 285 (1993) (quoting Jesse L. Jackson, “The Right to Breath Free,” speech
prepared for Earth Day tour, March 30–April 3, 1990).

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Environmentalism, which contends that environmentalism is unprepared to
confront many of today’s global ecological crises, most importantly, global
warming.3 Because the environmental movement4 lacks vision, relies too
3.
Michael Shellenberger & Ted Nordhaus, The Death of Environmentalism, GRIST
MAGAZINE (Jan. 13, 2005), http://www.grist.org/news/maindish/2005/01/13/doereprint/index.html. For a discussion of the response to The Death of Environmentalism, see,
e.g., Felicity Barringer, Paper Sets Off a Debate on Environmentalism’s Future, N.Y.
TIMES, Feb. 6, 2005, at 18.
4.
According to geography professor Robert Cameron Mitchell and sociology
professors Angela G. Mertig and Riley E. Dunlap, “The modern environmental movement
includes many different social-movement organizations–local, state, regional, national, and
international–that seek to protect the environment.” Robert Cameron Mitchell, Angela G.
Mertig & Riley E. Dunlap, Twenty Years of Environmental Mobilization: Trends Among
National Environmental Organizations, in AMERICAN ENVIRONMENTALISM: THE U.S.
ENVIRONMENTAL MOVEMENT, 1970-1990 11, 12 (Riley E. Dunlap & Angela G. Mertig eds.,
1992) [hereinafter AMERICAN ENVIRONMENTALISM]. Shellenberger and Nordhaus do not
explicitly define “environmental movement” in their paper. But it is clear that they wish to
draw a distinction between the environmentalism of today and that of the 1960s and 1970s,
which brought about powerful environmental laws, such as the Endangered Species Act, the
Clean Air and Clean Water Acts, and the National Environmental Policy Act.
A number of scholars and practitioners have attempted to flesh out the phrase
“environmental movement.” Professor Alice Kaswan, for example, uses the phrase to
connote the “mainstream ‘second wave’ of the environmental movement”–environmental
groups formed in the late 1960s and early 1970s, such as the Natural Resources Defense
Council (NRDC), the Environmental Defense Fund (now known just as “Environmental
Defense” or “ED”), and the Sierra Club Legal Defense Fund (later known as the
“Earthjustice Legal Defense Fund” and now known just as “Earthjustice”)–but not including
“the grassroots environmental groups which arose in the 1970s and 1980s, largely in
response to toxic contamination issues.” Alice Kaswan, Environmental Justice: Bridging the
Gap Between Environmental Laws and “Justice,” 47 AM. U. L. REV. 221, 261 n.185, 265
n.217 (1997).
Luke Cole, an environmental justice and civil rights lawyer in San Francisco, and director of
the Center on Race, Poverty & the Environment, explains that the “first wave” of the
environmental movement began at the end of the 19th century, with John Muir, Teddy
Roosevelt, and other nature lovers pushing for the preservation of wilderness areas. He
claims that the “second wave” began in the 1960s and took form around Earth Day 1970
with the widespread growth of legal-scientific organizations such as NRDC, ED, and
Earthjustice–groups that constitute what he refers to as the “mainstream environmental
movement”–the groups responsible for much of U.S. environmental law and the groups that
dominate the current national environmental scene. Luke W. Cole, Empowerment As the
Key to Environmental Protection: The Need for Environmental Poverty Law, 19 ECOLOGY
L.Q. 619, 634 (1992). For Cole, the “third wave” emerged from the Love Canal disaster in
the late 1970s–grassroots environmentalists who, in contrast to the largely white, middleclass “second wave,” are frequently poor, working class people of color. Id. at 640.
For a different conception of “second wave” and “third wave” environmentalism, as well as
criticism of the “third wave,” see SHABECOFF, supra note 2, at 251-75; Bill Devall, Deep
Ecology and Radical Environmentalism, in AMERICAN ENVIRONMENTALISM, supra, at 51,

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heavily on technical policy solutions, such as pollution controls and higher
vehicle mileage standards, and continues to celebrate old victories, such as
the passage of the Clean Air Act and Clean Water Act, while ignoring the
high cost of health care and the lack of research and development tax
credits for and overall competitiveness of the American auto industry, the
authors contend that environmentalism must die and be reborn.5
This was not the first time that the environmentally conscious had
attempted to reform the focus or direction of its movement6 or to define or
redefine the essence and parameters of “the human-nature symbiosis.”7 In
fact, it appears that each generation explores whether the “environment” is
“out there”—an entity separate from humans—or whether the
“environment” is inclusive of, not distinct from, humans;” it then becomes
55 (describing third-wave environmentalism as “based on the principle that environmental
experts, usually lawyers and scientists, could and should negotiate directly with corporations
and government agencies to achieve compromises on pollution controls, energy policies,
and other environmental issues, preferably using the ‘market’ mechanism,” and referring to
such an approach as “narrowly rational”).
In contrast to the formulation of the “environmental movement” as “waves,” Professor W.
Douglas Costain and the late Professor James P. Lester proffer that “[t]he history of
environmental politics and policy may be roughly divided into four periods: the
‘conservation-efficiency movement’ from about 1890-1920; the ‘conservation-preservation
movement’ from about 1920 to 1960; the ‘environmental movement’ from about 1960 to
1980; and the contemporary period of ‘participatory environmentalism’ starting in the
1980s.” W. Douglas Costain & James P. Lester, The Evolution of Environmentalism, in
ENVIRONMENTAL POLITICS & POLICY, supra note 1, at 15, 22-23. For a discussion of whether
a new environmental movement is growing, see Peter Applebome, Our Towns; Earth’s Fate
May Hinge on Alert, Furry Creatures Called People, N.Y. TIMES, June 4, 2006, § 1, at 37.
When not referring to Shellenberger and Nordhaus’s use of “environmental movement,” and
when not explicitly stated otherwise, this Article uses the phrase “environmental
movement,” “mainstream environmental movement,” or “mainstream environmental
organization(s)” (MEOs) primarily to mean multi-issue environmental law, policy and
advocacy organizations with an international, national, or regional focus, i.e., the “second
wave.” This Article focuses on MEOs because of their visibility and influence in
environmental policy debates. Note, however, that this Article’s comments, criticisms and
suggestions may also apply to grassroots environmental organizations–frequently, although
not necessarily always, local, issue-specific groups.
5.
Shellenberger & Nordhaus, supra note 3. For a discussion of this Author’s
discomfort with arguments calling for the death and rebirth of abstract ideas and disciplines,
see Avi Brisman, The End of Art, 47 NAEA NEWS 9 (Dec. 2005) (reviewing DONALD
KUSPIT, THE END OF ART (2004)).
6.
See, e.g., SHABECOFF, supra note 2, at 279 (“To achieve the basic reforms
necessary to reach its goals, the environmental movement itself will have to evolve. There
must be a fourth wave of environmentalism.”).
7.
Peter Manus, Our Environmental Rebels: An Average American Law Professor’s
Perspective on Environmental Advocacy and the Law, 40 NEW ENG. L. REV. 499, 499-500
(2006).

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a rite of passage for that generation to promulgate an “environmental”
vision, as well as the means of achieving that vision (which may or may not
coalesce with the values and methods of the previous generation).8 As
Professor Peter Manus writes in Our Environmental Rebels: An Average
American Law Professor’s Perspective on Environmental Advocacy and
the Law, “[e]very generation discovers for itself that we humans are one
with the natural environment. Our parents learned it in the schoolmarm
prose of Rachel Carson, and our grandparents learned it in the farmerphilosopher musings of Aldo Leopold or, reaching back further, in the fire
and brimstone preaching of John Muir.”9 Thus, it seems natural to ask
whether, given this “deja-vu-all-over-again,”10 we should place great
weight in the assertions of Shellenberger and Nordhaus. But because of our
lack of progress under the Clinton and two Bush administrations with
respect to federal climate change legislation,11 the ever-present threats to
drilling in the Arctic National Wildlife Refuge,12 and the recent attempts to

8.
In a recent Op-Ed, New York Times columnist Thomas L. Friedman urges today’s
college students to “build the institutions, alliances and programs that will turn back the
black tide of climate change and petro-authoritarianism, which, if unchecked, will certainly
poison [their] world and [their] future as much as fascism once threatened to do to [their]
parents’ world and future.” Thomas L. Friedman, Op-Ed, The Greenest Generation, N.Y.
TIMES, Apr. 21, 2006, at A25.
9.
Manus, supra note 7, at 499. See also Manus, supra note 7, at 518, 528; cf. TERRE
SATTERFIELD, ANATOMY OF A CONFLICT: IDENTITY, KNOWLEDGE, AND EMOTION IN OLDGROWTH FORESTS 37 (2002) (“Roosevelt-style conservation is closer to what today’s loggers
would support than it is to what today’s environmentalists would support. . . . [T]he roots of
modern-day environmentalism can be traced most prominently to John Muir’s spirituality,
Leopold’s land ethic, and the ecosystem sensibilities articulated by George Perkins Marsh
and Rachel Carson.”).
10.
Manus, supra note 7, at 501.
11.
For a discussion of state efforts to reduce emissions of carbon dioxide and an
argument that international cooperation, rather than E.P.A. rule-making, is the only way to
achieve serious limits on greenhouse gas emissions, see John Tierney, Environmental
Procrastination Agency, N.Y. TIMES, July 8, 2006, at A13; cf. Michael E. Kraft, Congress
and Environmental Policy, in ENVIRONMENTAL POLITICS & POLICY, supra note 1, at 168, 198
(“Despite the reigning cynicism of the day, it is hard to imagine the United States dealing
seriously with climate change, protection of biodiversity, and sustainable development–or
even the more prosaic issues of air and water pollution–without extensive involvement of
the U.S. Congress.”).
12.
See, e.g., Editorial, Energy Shortage, N.Y. TIMES, May 30, 2006, at A18
(discussing the House of Representatives’ most recent vote to open the Arctic National
Wildlife Refuge to oil drilling); SATTERFIELD, supra note 9, at 39 (“[U]nder President
George W. Bush, an escalating threat to the environment seems certain as conflicts surface
in the western United States over the drilling of oil in Alaska’s wildlife reserves and federal
promises to open public lands to more extensive resource extraction.”).

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gut the Endangered Species Act,13 not to mention the ever-increasing
soporific public responses to any issue deemed “environmental” (with the
exception of rising gasoline prices),14 the environmental movement could
benefit from some new ideas and approaches. Shellenberger and
Nordhaus’s essay is by no means a panacea, but its critique of the
environmental community’s myopic conception of “environment” is a
much-needed and well-justified reminder and provides a springboard for
this Article’s exploration of an issue that has gained much attention since
the 2000 election15 but which usually falls outside the province of

13.
Threatened and Endangered Species Recovery Act of 2005, H.R. 3824, 109th
Cong. (2005). H.R. 3824, sponsored by Rep. Richard W. Pombo (R-CA), passed the House
last year but has not passed the Senate. See Felicity Barringer, Endangered Species Act
Faces Broad New Challenges, N.Y. TIMES, June 26, 2005, § 1, at 20 (discussing the clash
between “critical habitat” and development rights and the efforts to reduce the scope of the
1973 Endangered Species Act); Felicity Barringer, House Votes for New Limits On
Endangered Species Act, N.Y. TIMES, Sept. 30, 2005, at A24 (discussing how the House of
Representatives, in a 229 to 193 vote, moved to eliminate the “critical habitat” provision of
the Endangered Species Act and to reimburse property owners whose land values are
reduced by the law).
For an argument blaming the Washington, D.C.-based non-profit environmental
organization, Defenders of Wildlife, for helping to craft and then advocating on behalf of
the Pombo-sponsored bill, see Turtle, Pombo’s Extinction Bill Brought to You by Defenders
of Wildlife, 26 EARTH FIRST! 3 (Nov.-Dec. 2005) (accusing the organization of becoming
“an anti-critical habitat machine”). See also Rodger Schlickeisen, President, Defenders of
Wildlife, Defenders of Wildlife and the Endangered Species Act: The Real Story, 26 EARTH
FIRST! 6 (Jan.-Feb. 2006) (in response); Larry J. Schweiger, President, National Wildlife
Federation, Letter to the Editor, 26 EARTH FIRST! 7 (Jan.-Feb. 2006) (also in response).
14.
In surveys conducted in March 2006, the “Environment” tied for tenth (with
“Moral and family values”) on the public’s list of most important problems facing the
United States. “Gas/heating oil crisis” tied for sixth with “President Bush,” behind “War in
Iraq,” “Economy and jobs,” “Immigration,” “Terrorism,” and “Health care.” Andrew C.
Revkin, Yelling ‘Fire’ on a Hot Planet, N.Y. TIMES, Apr. 23, 2006, at § 4, at 1 (citing CBS
News nationwide telephone survey, April 6-9; Gallup nationwide telephone survey, March
13-16)). But see James P. Lester, Introduction to ENVIRONMENTAL POLITICS & POLICY,
supra note 1, at 1, 1 (“In the last thirty years environmental protection policy has moved
from being a ‘nonissue’ to being one of the most significant issues of our time.”).
For a review of the ebb and flow of public concern with environmental quality in the United
States, see Riley E. Dunlap, Trends in Public Opinion Toward Environmental Issues: 19651990 in AMERICAN ENVIRONMENTALISM, supra note 4, at 89, 89.
15.
For an overview of post-Election 2000 public and scholarly interest in criminal
disenfranchisement, see Alec C. Ewald, “Civil Death”: The Ideological Paradox of
Criminal Disenfranchisement Law in the United States, 2002 WIS. L. REV. 1045, 1045
[hereinafter Civil Death]; ALEC EWALD, A ‘CRAZY-QUILT’ OF TINY PIECES: STATE AND
LOCAL ADMINISTRATION OF AMERICAN CRIMINAL DISENFRANCHISEMENT LAW 1 (Nov.
2005)[hereinafter CRAZY-QUILT], http://www.sentencingproject.org/pdfs/crazyquilt.pdf;
David Hamsher, Comment, Counted Out Twice–Power, Representation & the ‘Usual

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“environmental”: criminal disenfranchisement (frequently referred to as
“felon disenfranchisement”)16—the disqualification of individuals
convicted of crimes from the voting process. First, however, this Article
attempts to flesh out some of Shellenberger and Nordhaus’ major
criticisms.
Shellenberger and Nordhaus condemn environmental leaders for
assuming that everyone shares the same definition of “environment”17 and
Residence Rule’ in the Enumeration of Prisoners: A State-Based Approach to Correcting
Flawed Census Data, 96 J. CRIM. L. & CRIMINOLOGY 299, 300 (2005); LALEH ISPAHANI,
AMERICAN CIVIL LIBERTIES UNION, OUT OF STEP WITH THE WORLD: AN ANALYSIS OF FELONY
DISENFRANCHISEMENT IN THE U.S. AND OTHER DEMOCRACIES 3 (May 2006),
http://www.aclu.org/images/asset_upload_file825_25663.pdf; Pamela S. Karlan, Ballots and
Bullets: The Exceptional History of the Right to Vote, 71 U. CIN. L. REV. 1345, 1365 (2003);
RYAN S. KING & MARC MAUER, THE SENTENCING PROJECT, THE VANISHING BLACK
ELECTORATE: FELONY DISENFRANCHISEMENT IN ATLANTA, GA 1 (Sept. 2004) [hereinafter
KING
&
MAUER,
THE
VANISHING
BLACK
ELECTORATE],
http://www.sentencingproject.org/pdfs/atlanta-report.pdf; Brian Pinaire, Milton Heumann &
Laura Bilotta, Barred from the Vote: Public Attitudes Toward the Disenfranchisement of
Felons, 30 FORDHAM URB. L.J. 1519, 1545 (2003); Elena Saxonhouse, Note, Unequal
Protection: Comparing Former Felons’ Challenges to Disenfranchisement and Employment
Discrimination, 56 STAN. L. REV. 1597, 1607-08 (2004).
16.
The phrase “felon disenfranchisement” is actually a bit of a misnomer because
some states bar individuals convicted of certain misdemeanors. See, e.g., Ewald, Civil
Death, supra note 15, at 1057 n.31 (listing states that disenfranchise offenders for “infamous
crimes” or those involving “moral turpitude,” which may not be felonies); EWALD, CRAZYQUILT, supra note 15, at 6 (listing states where certain misdemeanants are disenfranchised);
Matthew T. Clarke, Iowa’s Governor Grants Ex-Prisoners Automatic Voting Rights
Restoration, 16 PRISON LEGAL NEWS 23 (2005) (discussing executive order automating the
restoration of rights to persons convicted of a felony or aggravated misdemeanor upon
completion of sentence). Because disenfranchisement, then, extends beyond felonies to
misdemeanors, this Article attempts to refer to the phenomenon by its more inclusive, albeit
less familiar, term: “criminal disenfranchisement.” Occasionally, however, this Article will
use the term “felon disenfranchisement,” often to maintain consistency with cited passages
by other authors. Unless otherwise specified, usage of the term “felon disenfranchisement”
is not intended to distinguish disqualification based on felony convictions from convictions
for misdemeanors.
17.
Exactly what constitutes “environment” has been the subject of much discussion
and debate. For a discussion of different conceptions of the word “environment,” see, e.g.,
Avi Brisman, The Aesthetics of Wind Energy Systems, 13 N.Y.U. ENVTL. L.J. 1, 122-32
(2005); ROM HARRE, JENS BROCKMEIER & PETER MUHLHAUSLER, GREENSPEAK: A STUDY OF
ENVIRONMENTAL DISCOURSE 12, 185-86 (1999) (noting that the term “environment” refers
to both “the whole biosphere” and “the strictly localized surroundings of one’s own life”
and stating that “‘the environment’ . . . is . . . a blurred linguistic construction, a hybrid
between nature and culture, manner and humankind, causality and morality, as multifaceted
as the world it purports to represent”); DAVID W. ORR, THE NATURE OF DESIGN: ECOLOGY,
CULTURE, AND HUMAN INTENTION (2002); Richard Southwood, The environment: problems
and prospects, in MONITORING THE ENVIRONMENT: THE LINACRE LECTURES 1990-91 5

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take the movement as a whole to task for the capricious way in which it
defines issues as “environmental”: “If one understands the notion of the
‘environment’ to include humans, then the way the environmental
community designates certain problems as environmental and others as not
is completely arbitrary.”18 Why, for example, is raising the standards in
Corporate Average Fuel Economy (CAFE) legislation deemed
“environmental,” but abolishing tax loopholes for certain classes of (high
polluting) trucks not, the authors ask; further, why is global warming
deemed an “environmental” problem, but poverty and war not conferred
this status, when each results in the widespread destruction of humans and
non-human species.19 By narrowly defining “environmental” problems,
Shellenberger and Nordhaus contend, we come up with narrow solutions.20
The environmental community’s fondness for promulgating technical
policy solutions for everything it regards as “environmental” problems also
infuriates Shellenberger and Nordhaus.21 Why, for example, do
environmental leaders call for more efficient appliances and hybrid cars
and for tax credits for those hybrid cars, but not for an end to the
privatization of health care, which costs the auto industry billions of dollars
a year that could be used for research and development, the authors
wonder.22 If the auto industry were relieved of its health care burden—not
(Bryan Cartledge ed., 1992) [hereinafter THE LINACRE LECTURES] (“Our environment is
broadly defined as our surroundings or, as Einstein put it: ‘Everything that isn’t me.’”).
For a discussion of the conception of “environment” in “environmental justice,” see
Kaswan, supra note 4, at 229-30 (reflecting a conception grounded in impact on a
community’s well-being, from health risks to socioeconomic consequences of land use).
18.
Shellenberger & Nordhaus, supra note 3, at Part I.
19.
For a discussion of the impact of poverty on the environment, see, e.g., Michael
McCloskely, The Emperor Has No Clothes, 9 DUKE ENVTL. L. & POL’Y F. 153 (1999). For a
discussion of poverty and war as issues integral to sustainable development, see John C.
Dernbach, Synthesis, in STUMBLING TOWARD SUSTAINABILITY 1, 5 (John C. Dernbach ed.,
2002) (“Although poverty and environmental degradation are important in their own right,
they also can cause or contribute to wars, starvation, ethnic tensions, and terrorism, which
are more likely to get headlines than their underlying causes.”); Michael Heseltine, The
environment: a political view, in THE LINACRE LECTURES, supra note 17, at 42, 47
(“[F]reedom and a good environment are as inextricably bound up with each other as
wealth-creation and a good environment are. . . . the areas where the worst environmental
degradation in the world is to be found are those where freedom is least and poverty
greatest. Reinforcing the democratic impulse in eastern Europe is as important for the
environment as it is for national security.”).
20.
Shellenberger & Nordhaus, supra note 3, at Part I.
21.
Shellenberger & Nordhaus, supra note 3.
22.
Id. at Part I (explaining that the American auto industry provides health care for
its retired employees, whereas the Japanese auto industry does not because Japan has a
national health care system). Cf. Jerry Adler, The New Greening of America, NEWSWEEK,
July 17, 2006, at 43, 52 (“‘If the United States became a world leader in developing green

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typically regarded as an “environmental” problem—it could better compete
with Japanese auto companies (Japan has a system of national health care),
not only improving the likelihood that the Big Three (General Motors, Ford
and DaimlerChrysler)23 could produce a more fuel efficient vehicle, but
reducing the likelihood that they would need to cut jobs for U.S. auto
workers (“labor” is also not considered an “environmental” problem).24
Similarly, Shellenberger and Nordhaus excoriate the environmental
movement for its insistence on viewing its failures as “essentially
tactical.”25 Why, for example, does the movement perceive its inability to
make serious headway on global warming as simply the result of being
unsuccessful in advertising, public relations, lobbying, and forging
alliances with certain constituencies (such as the religious26 or Latino
communities27), the authors inquire.28 This position reeks of arrogance,
Shellenberger and Nordhaus maintain—a point Philip Shabecoff stressed a
decade earlier in his seminal book, A Fierce Green Fire: The American
Environmental Movement:
Most of the environmental organizations have . . . started to take steps
to change ‘the whiteness of the green movement,’ but one senses they
are doing so basically out of a sense of obligation or in response to
criticism. In reality, the environmentalists need the knowledge, talent,
street smarts, practical experience, political energy, and militancy of
angry outsiders from minority communities more than the minorities
need the environmentalists.29

Thus, Shellenberger and Nordhaus, like Shabecoff before them, assert that
by asking what non-environmental groups can do for environmentalists,
rather than what environmentalists can do for non-environmental
organizations, environmentalists virtually guarantee tepid responses to their
cries for help.
technology and made it available to other countries, it could make a big difference. For $100
billion a year, which is at least what we’re spending on Iraq,’ it could be done.” (quoting
Marty Hoffert, emeritus professors of physics at New York University)).
23.
DaimlerChrysler was formed in 1998 by the merger of Daimler-Benz (Germany)
and the Chrysler Corporation (USA). http://www.daimlerchrysler.com/ (follow “Corporate
Profile” hyperlink) (last visited Apr. 15, 2007).
24.
Shellenberger & Nordhaus, supra note 3, at Part I.
25.
Id.
26.
See, e.g., Dieter T. Hessel, Sustainability as a Religious and Ethical Concern, in
STUMBLING TOWARD SUSTAINABILITY, supra note 19, at 593, 593-94 (positing that ecojustice occurs when humans live in harmony with God, each other, and nature).
27.
For a discussion of the environmental movement’s attempts to forge alliances with
poor and/or minority communities, see infra Part III.A.
28.
Shellenberger & Nordhaus, supra note 3, at Part I.
29.
SHABECOFF, supra note 2, at 283.

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Recognizing the environmental movement’s history of self-centered
approaches to coalition-building, and acknowledging Shellenberger and
Nordhaus’ criticism of the environmental movement’s myopic and
arbitrary conception of “environment” and “environmental” problems —
and the limited solutions that such conceptions engender—this Article
suggests a measure that environmental groups could take to address these
concerns. This Article proposes that mainstream environmental
organizations (MEOs) advocate, educate, litigate and push for legislative
changes with organizations devoted to facilitating the reentry of former
prisoners to the community,30 lowering their recidivism rates,
reconsidering criminal disenfranchisement policies, reducing the criminal
justice system’s reliance on incarceration, and effecting prison reform.
More specifically, this Article urges MEOs to join forces with nonenvironmental organizations on behalf of the approximately five million
Americans—a disproportionate number of whom are African-American
men31—who are denied the right to vote as a result of laws that prohibit
voting by offenders or ex-offenders.32 Such a partnership would be vital to

30.
Scholars and practitioners vary ever so slightly in their definition and use of the
term “reentry.” See, e.g., Adam Cohen, A Community of Ex-Cons Shows How to Bring
Prisoners Back Into Society, N.Y. TIMES, Jan. 2, 2004, at A16 (defining “reentry” as “the
moment prisoners rejoin society”); SARAH LAWRENCE ET AL., THE PRACTICE AND PROMISE
OF PRISON PROGRAMMING 18 (May 2002), http://www.urban.org/UploadedPDF/
410493_PrisonProgramming.pdf (referring to “reentry” as “the transition of released
offenders into communities”); Michael Pinard, Broadening the Holistic Mindset:
Incorporating Collateral Consequences and Reentry into Criminal Defense Lawyering, 31
FORDHAM URB. L.J. 1067, 1069 (2004) (“Reentry pertains to the process by which an exoffender who has completed the non-community based portion of her sentence, such as
incarceration in a jail, prison or juvenile facility, returns to her community.”); JAMES P.
LYNCH & WILLIAM J. SABOL, PRISONER REENTRY IN PERSPECTIVE 4 (Sept. 2001),
http://www.urban.org/UploadedPDF/410213_reentry.PDF (defining “reentry” as “the return
of inmates back to society”).
31.
See infra note 184 and accompanying text.
32.
ISPAHANI, supra note 15, at 3 (noting that the United States prevents nearly 5.3
million American citizens from voting on the grounds that they committed a crime). One
commentator estimates that disenfranchisement laws have denied voting rights to 6.7
million. Clarke, supra note 16.
Some regard the term “ex-offender” as a negative label. See Michael Pinard, supra note 30,
at 1068 n.8. Part of the discomfort with the term “ex-offender” may stem from the fact that
it has been used to describe 1) a person who has just been released from prison; 2) a person
under post-incarceration supervision; and 3) a person who is no longer under postincarceration supervision. See, e.g., LYNCH & SABOL, supra note 30, at 5; cf. Nora V.
Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing
Consequences, 11 STAN. L. & POL’Y REV. 153, 153 n.4 (1999) [hereinafter Demleitner,
Preventing Internal Exile] (using the term “ex-offender” to “describe a convicted offender
who has fully served her sentence”). This Article uses the terms “felon” and “offender” to

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MEOs from a tactical standpoint in order to repair or improve relations
with other social movements,33 especially given African-American and
Latino organizations’ lingering mistrust of mainstream environmental
organizations for their support of population control and immigration
restrictions in the 1970s—support that generated national and international
charges of racism, classicism and xenophobia.34 But this Article’s
recommendation of a union is not simply to make amends or to provide
MEOs with a “helper’s high”35 or with “narcissistic gratification”—a
charge that has been leveled by grassroots groups at lawyers for MEOs on
the grounds that they undertake lawsuits to satisfy their own needs, rather
than those of their clients.36 Rather, such an alliance would serve the
important goal of ensuring the right to vote—a right that has been referred
refer to individuals who are either currently incarcerated or who are on parole or probation.
This Article uses the terms “prisoner” and “inmate” to refer to individuals who are currently
incarcerated, “parolee” to refer to individuals who are not longer incarcerated but still under
criminal justice supervision, and “probationer” to refer to individuals under criminal justice
supervision who did not receive prison sentences. “Ex-prisoner,” “former inmate,” “former
prisoner,” and “released prisoner”refer to both individuals who are no longer incarcerated
but who may be on parole, as well as to those who have completed their sentences and are
no longer under supervision by the criminal justice system. This Article uses the terms “exfelon” and “ex-offender” to refer to exclusively to individuals who have completed their
sentences and are no longer under supervision by the criminal justice system.
33.
See infra Part III.A.
34.
See infra Part III.A; see also ROBERT GOTTLIEB, FORCING THE SPRING: THE
TRANSFORMATION OF THE AMERICAN ENVIRONMENTAL MOVEMENT 253-60 (1993)
(discussing the racial and xenophobic implications of some environmental groups’ support
for population control and immigration controls, and noting some environmental groups’
unsuccessful attempts to simultaneously promote voluntary sterilization while disassociating
themselves from incidents such as the 1973 involuntary sterilization of two young AfricanAmerican women in Montgomery, AL).
Although population control and immigration restrictions have faded from environmental
groups’ radar screens and although the racial and xenophobic implications of these issues
began receding in the 1980s, mainstream environmental organizations’ one-time support
created a “legacy of conflict” and wounds that remain to this day. GOTTLIEB, supra at 259.
For recent comments regarding the relationship between population growth and
environmental degradation, see SATTERFIELD, supra note 9, at 117 (“The position that
excessive human mortality is beneficial to ecological health has attracted considerable
critical attention. I find, as do many others, the very idea of imposing high mortality rates on
disadvantaged populations–under the guise of averting ecological crisis–a form of violent
colonization of the first order.”).
35.
The phrase “helper’s high” refers to the “rush of good feelings” that one can
experience by engaging in service-oriented acts such as volunteering. See Rachel Kaplan &
Stephen Kaplan, Preference, Restoration, and Meaningful Action in the Context of Nearby
Nature, in URBAN PLACE: RECONNECTING WITH THE NATURAL WORLD 271, 293 (Peggy F.
Barlett ed., 2005) [hereinafter URBAN PLACE].
36.
Cole, supra note 4, at 653.

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to as “preservative of all rights,”37 as well as one that “makes all other
political rights significant,”38 and “a cornerstone of democratic governance
and a fundamental element of citizenship in democratic societies.”39 Most
importantly, and as this Article will explain, joint efforts to urge
reconsideration of state disenfranchisement policies and to remove
obstacles to participation in democratic life could help broaden the
electorate,40 thereby creating a mass of voters with the improved strength
to address and alleviate society’s ills (including, but certainly not limited
to, environmental wrongs—such as pollution and natural resource
depletion).
Part II starts with a précis of the prison expansion of the last three
decades. It then provides an overview of the collateral consequences of
conviction and imprisonment41 and the impact of these collateral
consequences on reentry. Part II next turns to criminal voting restrictions,
37.
Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (“Though not regarded strictly as
a natural right, but as a privilege merely conceded by society, according to its will, under
certain conditions, nevertheless it is regarded as a fundamental political right, because
preservative of all rights.”); Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) (“Undoubtedly,
the right of suffrage is a fundamental matter in a free and democratic society. Especially
since the right to exercise the franchise in a free and unimpaired manner is preservative of
other basic civil and political rights . . . .”); see also SASHA ABRAMSKY, CONNED: HOW
MILLIONS WENT TO PRISON, LOST THE VOTE, AND HELPED SEND GEORGE W. BUSH TO THE
WHITE HOUSE 10-11 (2006) (“‘The voting issue is the only issue that addresses questions of
power and power relationships between prisoners and prison administrators, and
communities prisoners come from and the state. It’s the key issue. It’s the one right you
have to have to protect all your other rights . . . .’” (quoting Jazz Hayden, a New York exoffender)).
38.
FRANCES F. PIVEN & RICHARD A. CLOWARD, WHY AMERICANS STILL DON’T VOTE:
AND WHY POLITICIANS WANT IT THAT WAY 2 (2000); see also ISPAHANI, supra note 15, at 3
(noting U.S. Supreme Court jurisprudence that the most basic civil rights “‘are illusory if the
right to vote is undermined.’” (quoting Wesberry v. Sanders, 376 U.S. 1, 17 (1964))).
39.
Christopher Uggen & Jeff Manza, Democratic Contraction? The Political
Consequences of Felon Disenfranchisement in the United States, 67 AM. SOC. REV. 777, 777
(2002) [hereinafter Uggen & Manza, Democratic Contraction]; see also Demleitner,
Preventing Internal Exile, supra note 32, at 157 (stating that “political rights have
traditionally ‘confer[red] a minimum of social dignity’ upon their recipient” and observing
that the right to vote in a democratic political community constitutes membership in that
community); Heather Lardy, Citizenship and the Right to Vote, 17 OXFORD J. LEGAL STUD.
74, 86 n.48 (1997))); see generally Adam Cohen, American Elections and the Grand Old
Tradition of Disenfranchisement, N.Y. TIMES, Oct. 8, 2006, at WK 11 (“Disenfranchisement
undermines not only American democracy, but also the whole idea of America, by
illegitimately excluding some people from their rightful place in it.”).
40.
See generally ABRAMSKY, supra note 37, at 6 (“[M]ass incarceration [is]
unraveling the very fabric of democracy, of mass participation in the process of political
decision making . . . .”).
41.
See infra note 109 and accompanying text defining “collateral consequences.”

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beginning with a snapshot of different state disenfranchisement
provisions,42 the historical foundations for exclusion, and the constitutional
challenges to disenfranchisement laws. Part II then delves into the impact
of disenfranchisement on national, state and local elections, as well as its
effect on both felons’ and ex-felons’ home communities and the
communities where convicted offenders are incarcerated. In Part II, as in
the rest of this Article, the focus is mainly on adult males because men
comprise the overwhelming majority of State and Federal inmates and exoffenders.43 Where appropriate, this Article will make reference to specific
policies or programs that affect or could affect juveniles and women
differently.44
42.
Although Part II.B discusses the categories of individuals who may be
disenfranchised—inmates, parolees, probationers, and ex-offenders—this Article does not
discuss how states with disenfranchisement policies compile their felon purge lists, how
states’ election officials compare individuals with criminal convictions with individuals
listed on their voter registration lists before removing them from the rolls, or how states
notify individuals that they will be or have been removed from voting lists. For an in-depth
analysis of state purge list compilation, the criteria used to determine matches, and state
procedures for notification of individuals matched, see LALEH ISPAHANI & NICK WILLIAMS,
PURGED!: HOW A PATCHWORK OF FLAWED AND INCONSISTENT VOTING SYSTEMS COULD
DEPRIVE MILLIONS OF AMERICANS OF THE RIGHT TO VOTE 1 (Oct. 2004) [hereinafter,
ISPAHANI & WILLIAMS, PURGED!], http://www.aclu.org/FilesPDFs/purged%20-voting_
report.pdf.
43.
As of December 31, 2004, women encompassed only seven percent of all inmates.
PAIGE M. HARRISON & ALLEN J. BECK, BUREAU OF JUSTICE STATISTICS, U.S. DEPT. OF
JUSTICE, PRISONERS IN 2004 1 (Oct. 2005), available at http://www.ojp.usdoj.
gov/bjs/pub/pdf/p04.pdf.
The number of female prisoners is rising at a rapid rate, however. During 2004, the number
of women under the jurisdiction of State or Federal prison authorities increased four percent,
whereas the number of men in prison rose only 1.8%. HARRISON & BECK, supra at 4; see
also Fox Butterfield, Women Find a New Arena for Equality: Prison, N.Y. TIMES, Dec. 29,
2003, at A9 [hereinafter Butterfield, New Arena for Equality] (discussing the rapid growth
in the number of women who are being arrested, convicted and sentenced to prison, mostly
on drug charges); Kate Zernike, In Minnesota, an Odd Request: Please Don’t Fence the
Inmates In, N.Y. TIMES, Dec. 19, 2005, at A1 (“While there are still 13 times as many men
as there are women in prison, the women’s population is growing faster. Nationally, the
number of women grew an average of 4.7 percent a year from 1995 to 2004 . . . .”).
44.
Juveniles: see infra notes 172-77 and accompanying text in Part II.A regarding the
stigmatization that a juvenile may experience from being tried in adult criminal court, rather
than in juvenile court; the significance of and difference for juveniles who are tried and
convicted in adult criminal court rather than juvenile court. Women: see infra notes 57-58,
69, 162 and accompanying text in Part II.A on the number of women who have been
convicted of drug offenses, as well as the number of African American women incarcerated
in this country in comparison to other countries; the stigma of a criminal record for African
American and Latina women; see also infra note 186 and accompanying text in Part II.B
discussing African American women who have been disenfranchised.

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Part III offers four arguments for why MEOs should consider criminal
disenfranchisement to be an “environmental” issue and why they should
work with grassroots social justice groups to bring about changes in state
criminal disenfranchisement laws and policies. Section A looks at the
relationship of mainstream environmental organizations to grassroots social
justice groups and argues that public participation (especially in the
governmental decision making process) is a core principle of
environmental justice, a key component to many existing environmental
laws, and integral to the concept of sustainable development. Section B
explores the connection between disenfranchisement and recidivism and,
more generally, between voting and crime. It next examines both whether
crime adversely impacts the environment and whether certain
environmental characteristics increase the likelihood of crime. Section B
posits that if both exist, then criminal disenfranchisement laws and policies
should not lie outside the scope of environmental law. Section C discusses
the impact of criminal disenfranchisement on elections, examining
presidential appointments to federal agencies and judgeships and the
significance of these appointments for the enforcement and interpretation
of environmental law. Section D argues that a broader electorate will
contribute to a richer understanding of human-environment relations and a
more elaborate taxonomy of environmental values and perspectives.
Although there is a risk that more voters may lead to more perspectives and
greater disunity within and between organizations, this Section urges
MEOs to take such a risk in order to expand ecological knowledge on both
the local and global levels, increase the participation of citizens in
environmental decision-making, heighten the publicity and exposure of an
environmental problem to a wider audience (including policymakers), and
strengthen the tools used to rectify environmental wrongs.
Part IV suggests a series of reforms to state criminal disenfranchisement
laws and policies. Section A of this Part begins by reviewing recent studies
of public opinion regarding criminal disenfranchisement and then surveys
some of the changes that states have undertaken and, in most cases, to
liberalize their criminal disenfranchisement laws and policies. Section B
stresses legislative reform over litigation, and provides options and
recommendations for states to further liberalize their criminal
disenfranchisement laws and policies. Section C discusses the importance
of educating offenders, ex-offenders, correctional and criminal justice
officials, including probation and parole staff, regarding criminal
disenfranchisement and the methods for an offender or ex-offender to
regain the franchise. Part IV concludes by offering possible ways to rectify
the impact of the U.S. Census Bureau’s application of the “usual residence
rule” to prisoners, which dilutes the voting power of prisoners’ home
communities and rechannels funding and resources away from these needy

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urban areas.
II. LOCKED IN, THEN LOCKED OUT: FROM THE “TINDERBOX”45 TO THE
VOTING BOOTH
“[T]he way a society treats those who have transgressed against it is
evidence of the essential character of that society.”46

A. The Prison Addiction and the Scarlet Letter47 of Collateral
Consequences
In October 2005, the Bureau of Justice Statistics reported that the United
States incarcerated 2,267,787 persons at yearend 2004,48 sixty percent of
whom are African American or Hispanic.49 The percentages of African
Americans and Hispanics in State and Federal prison stand in stark contrast
to both the percentages of African Americans and Hispanics who
comprised the United States inmate population in the 1960s and the
percentages of African Americans and Hispanics in the total United States
population today.50 With respect to the changing racial composition of
45.
KEVIN N. WRIGHT, THE GREAT AMERICAN CRIME MYTH 163 (1985) (quoting
James Lieber, The American Prison: A Tinderbox, N.Y. TIMES, Mar. 8, 1981, § 6
(Magazine), at 26)
46.
Hudson v. Palmer, 468 U.S. 517, 523-24 (1984). One commentator uses the word
“tinderbox” as a metaphor not for prison, but for neighborhoods and communities whose
design and management “sponsor[] criminality” and “nurture a ‘tinderbox’ environment.”
P.M. Cozens, Sustainable Urban Development and Crime Prevention Through
Environmental Design for the British City: Towards an Effective Urban Environmentalism
for the 21st Century, 19 CITIES 129, 130 (2002).
47.
It would be equally appropriate to liken collateral consequences to “the Mark of
Cain.” See R. Paul Davis, The Mark of Cain: Some Subliminal Effects of Criminal Process,
44 SASKATCHEWAN L. REV. 219 (1980); Webb Hubbell, The Mark of Cain, 16 CRIMINAL
JUSTICE MAGAZINE (Fall 2001), available at http://www.abanet.org/crimjust/mo/premiumcr/cjmag/16-3/hubbell.html.
48.
HARRISON & BECK, supra note 43, at 1. This total represents individuals held in
federal and state prisons, territorial prisons, local jails, facilities operated by or exclusively
for the Bureau of Immigration and Customs Enforcement, military facilities, jails in Indian
country, and juvenile facilities. Id.
49.
HARRISON & BECK, supra note 43, at 8. African Americans comprised forty-one
percent of all State and Federal inmates serving sentences of more than one year; whites
represented thirty-four percent and Hispanics nineteen percent. Id.; Caroline A. Newman,
Note, Constitutional Problems with Challenging State Felon Disenfranchisement Laws
Under the Voting Rights Act of 1965, 38 CONN. L. REV. 525, 527 (2006).
50.
Christopher Uggen, Jeff Manza, and Angela Behrans, Felon Voting Rights and the
Disenfranchisement of African Americans, 5 SOULS: A CRITICAL JOURNAL OF BLACK
POLITICS, CULTURE, AND SOCIETY 47, 47 (2003) [hereinafter Uggen, Manza & Behrans,
Disenfranchisement of African Americans] (noting “the dramatic overrepresentation of

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United States prisons, sociology Professor Loïc Wacquant states:
[S]ince 1989 and for the first time in national history, African
Americans make up a majority of those walking through prison gates
every year. Indeed, in four short decades, the ethnic composition of the
US inmate population has reversed, turning over from 70 percent white
at the mid-century point to nearly 70 percent black and Latino today,
although ethnic patterns of criminal activity have not been
fundamentally altered during that period.
. . . [T]he rate of incarceration for African Americans has soared to
astronomical levels unknown in any other society, not even the Soviet
Union at the zenith of the Gulag or South Africa during the acme of the
violent struggles over apartheid.51

With respect to the racial makeup of the entire United States, African
Americans constituted approximately twelve percent of the total United
States population of 281,421,906, according to the 2000 Census.52
Hispanics, including, but not limited to, Mexicans, Puerto Ricans, and
Cubans, encompassed approximately thirteen percent of the total United
States population.53 Some experts predict that one in three African
American males can expect to spend time behind bars and that in some
communities, “interaction with the correctional system approaches near
inevitability.”54 In the no-holds-barred words of the Los Angeles hip-hop
persons of color within the criminal justice system”); see also Note, Winning the War on
Drugs: A “Second Chance” for Nonviolent Drug Offenders, 113 HARV. L. REV. 1485, 1485
(2000) [hereinafter Winning the War on Drugs] (“African-Americans dominate this new
prison population.”).
51.
Loïc Wacquant, Deadly Symbiosis: When ghetto and prison meet and mesh, 3
PUNISHMENT & SOCIETY 95, 96 (Jan. 2001) (citation omitted).
52.
See U.S. CENSUS BUREAU, U.S. DEP’T OF COMMERCE, U.S. SUMMARY: 2000:
CENSUS 2000 PROFILE, at Table DP-1 (July 2002), available at http://www.census.gov/
prod/2002pubs/c2kprof00-us.pdf.
53.
Id.
54.
KING & MAUER, THE VANISHING BLACK ELECTORATE, supra note 15, at 2; see also
ABRAMSKY, supra note 37, at 164 (“‘It’s a rarity for a black male to grow up and not be in
trouble with the law.’” (quoting Tennessee State Representative Larry Turner)); Todd R.
Clear, The Problem with “Addition by Subtraction”: The Prison-Crime Relationship in
Low-Income Communities, in INVISIBLE PUNISHMENT 181, 184 (Marc Mauer & Meda
Chesney-Lind eds., 2002) (“Incarceration is far more an issue for minority communities
than in white communities, especially among men.”); ISPAHANI, supra note 15 , at 3 (“If
current trends continue, black males would have a 1 in 3 chance of going to prison during
their lifetimes; Hispanics, 1 in 6, and whites, 1 in 17.”); Ken Silverstein, Introduction to
PRISON NATION: THE WAREHOUSING OF AMERICA’S POOR 1, 1 (Tara Herivel & Paul Wright
eds., 2003) (“Largely because of racially biased sentencing laws, about half of America’s
prison population is African-American and one-quarter of all black men are likely to be

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ensemble, Jurassic 5, “Got rid of slavery but kept the penitentiary.”55
The figure of approximately 2.3 million inmates mentioned in the
previous paragraph represents an increase of 2.6 percent from the previous
year,56 six times as many as in 1972,57 and more than any other country in
imprisoned at some point during their lifetimes.”).
55.
Jurassic 5, Freedom, in POWER IN NUMBERS (Interscope Records 2002); see also
ABRAMSKY, supra note 37, at 140 (“‘It’s a hustle. The biggest coup you could pull is to
create the environment that would cause people to respond in a barbaric way, charge them
with being barbarous, slap a stamp on them. They do their time, then they come out and
can’t get a job, can’t integrate back into society. . . . Today’s lynching is a felony charge.
Today’s lynching is incarceration. . . . A felony is a modern way of saying ‘I’m going to
hang you up and burn you.’ Once you get that F, you’re on fire.’” (quoting a black Muslim
preacher in Waterloo, IA)); Ewald, Civil Death, supra note 15, at 1131-32 (stating that
“even for free blacks, incarceration and slavery were virtually indistinguishable for much of
American history,” and discussing the connection between slavery and black inmate labor in
the context of the post-Civil War convict leasing system); Cassi Feldman, Unshackling the
LIMITS
WEEKLY,
Nov.
3,
2003,
http://www.citylimits.org/
Vote,
CITY
content/articles/weeklyView.cfm?articlenumber=1351 (“Being a prisoner puts you in the
category of the least powerful people in this country. It’s like slavery.” (quoting Joseph
“Jazz” Hayden, New York State parolee)); Wacquant, supra note 51, at 98-99 & Table 1
(“[T]he task of defining, confining, and controling [sic] African Americans in the United
States has been successively shouldered by four ‘peculiar institutions’: slavery [1619-1865];
the Jim Crow system [South, 1865-1965], the urban ghetto [North, 1915-1968], and the
novel organizational compound formed by the vestiges of the ghetto and the expanding
carceral system [1968-present] . . . .”).
56.
HARRISON & BECK, supra note 43, at 2.
57.
Eric Blumenson & Eva S. Nilsen, How to Construct and Underclass, Or How the
War on Drugs Became a War on Education, 6 J. GENDER RACE & JUST. 61, 61 (“[W]e now
imprison two million people, six times as many as we did in 1972.”) (2002); Hamsher, supra
note 15, at 312 (observing that the United States had six times the prisoners in 2003 as in
1970); RYAN S. KING, MARC MAUER & MALCOLM C. YOUNG, THE SENTENCING PROJECT,
INCARCERATION
AND
CRIME:
A
COMPLEX
RELATIONSHIP
1
(2005),
http://www.sentencingproject.org/pdfs/incarceration-crime.pdf (“Over the past thirty years
the United States has experienced an unprecedented rise in the use of incarceration, with the
number of people in prisons and jails increasing from 330,000 in 1972 to 2.1 million
today.”). See generally PAULA M. DITTON & DORIS JAMES WILSON, BUREAU OF JUSTICE
STATISTICS, U.S. DEP’T OF JUSTICE, TRUTH IN SENTENCING IN STATE PRISONS 12 (Jan. 1999),
available at http://www.ojp.usdoj.gov/bjs/pub/pdf/tssp.pdf (“The State prison population
dramatically increased between 1990 and 1997.”); Loïc Wacquant, A Boom in Private
Penitentiaries, LE MONDE DIPLOMATIQUE, July 1998, http://mondediplo.com/
1998/07/17prison (discussing “[t]he unprecedented expansion of penal activity in the United
States”).
In addition to greatly outpacing other countries with respect to its total prison
population, the number of African American women incarcerated in this country also
exceeds that of other countries. See Wacquant, supra note 51, at 96 (noting that “68,000
black women were locked up [as of mid-1999], a number higher than the total carceral
population of any one major western European country”).

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the world.58 The last few decades have also borne witness to the tripling of
adults under criminal justice supervision, either in the form of parole or
probation.59 This rapid rise in prison population, as well as the swelling
numbers of parolees and probationers, has been the subject of much public
debate and scholarly research over the last three decades.60 Although an in58.
HUMAN RIGHTS WATCH, ILL-EQUIPPED: U.S. PRISONS AND OFFENDERS WITH
MENTAL ILLNESS 22 (2003) [hereinafter HUMAN RIGHTS WATCH, OFFENDERS WITH MENTAL
ILLNESS], http://www.hrw.org/reports/2003/usa1003/usa1003.pdf. With five percent of the
world’s population, the United States accounts for twenty-five percent of its prison
population. Jim Holt, Decarcerate?, N.Y. TIMES, Aug. 15, 2004, § 6 (Magazine), at 20.
About 6.9 million Americans are under the control of the criminal justice system–about
3.2% of the adult population in the United States–which includes people in jail and prison,
as well as those on probation and parole. Fox Butterfield, U.S. ‘Correctional Population’
Hits New High, N.Y. TIMES, July 26, 2004, at A10; see also LAUREN E. GLAZE & SARI
PALLA, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PROBATION AND PAROLE IN
THE UNITED STATES, 2004 1 (Nov. 2005), available at http://www.ojp.usdoj.gov/
bjs/pub/pdf/ppus04.pdf. One of every seventy-five American men live in prison or jail and
there are more than 700 inmates (men and women) for every 100,000 U.S. residents. Connie
Cass, 1 in 75 Men Were in Prison or Jail in 2003, BOSTON GLOBE, May 28, 2004, available
at http://www.boston.com/news/nation/articles/2004/05/28/1_in_75_men_were_in_prison_
or_jail_in_2003/; HUMAN RIGHTS WATCH, OFFENDERS WITH MENTAL ILLNESS, supra, at 22;
HARRISON & BECK, supra note 43, at 1. This rate is the highest in the world, compared to
169 per 100,000 residents in Mexico, 116 per 100,000 residents in Canada, and 143 per
100,000 residents in England and Wales. See Cass, supra; Jeff Manza & Christopher Uggen,
Punishment and Democracy: Disenfranchisement of Nonincarcerated Felons in the United
States, 2 PERSPECTIVES ON POLITICS 491, 500 (Sept. 2004) [hereinafter Manza & Uggen,
Punishment and Democracy] (“[The United States] has the highest incarceration and
conviction rates in the world, with incarceration rates six to ten times those of the countries
that are most similar to us. For example, the 2000 incarceration rate in the United States was
686 per 100,000, compared to rates of 105 in Canada, 95 in Germany, and only 45 in
Japan.”).
59.
Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in
INVISIBLE PUNISHMENT, supra note 54, at 15, 15; see also ABRAMSKY, supra note 37, at 50;
Malcolm M. Feeley & Jonathan Simon, The New Penology: Notes on the Emerging Strategy
of Corrections and Its Implications, 30 CRIMINOLOGY 449, 460 (1992) (“Because of its high
costs, the growth of prison populations has drawn the greatest attention, but probation and
parole have increased at a proportionate or faster rate.”).
60.
See, e.g., Clear, supra note 54, at 184 (“[A]t no time in human history has there
been such a sustained, systemic increase in the use of confinement as a tool of social
control.”); Feeley & Simon, supra note 59, at 449, 454 (“No doubt, a new and more punitive
attitude toward the proper role of punishment has emerged in recent years, and it is manifest
in a shift in the language of statutes, internal procedures, and academic scholarship.”); Susan
B. Tucker & Eric Cadora, Ideas for an Open Society: Justice Reinvestment, 3 Open Society
Institute 3 (Nov. 2003) http://www.soros.org/resources/articles_publications/publications/
ideas_20040106/ideas_reinvestment.pdf (“The war on drugs, three-strikes sentencing
schemes, elimination of judicial discretion and parole, and the broad abandonment of
rehabilitation have led to an unprecedented level of imprisonment in the U.S.—over 2

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depth exploration of this proliferation is outside the scope of this Article,
one can be secure in attributing the escalation of incarcerated individuals to
a number of products of the “War on Crime,” namely: the replacement of
the indeterminate sentencing model with mandatory minimum sentences;61
the advent of “get-tough” policies such as “Three Strikes and You’re Out”
laws62—often double time for second felonies and twenty-five-years-to-life
for third-time felonies63—and truth-in-sentencing laws;64 and the “War on
million today compared to 200,000 in 1972.”).
61.
Anthony C. Thompson, Navigating the Hidden Obstacles to Ex-Offender Reentry,
45 B.C. L. REV. 255, 265-66 (2004) [hereinafter, Anthony C. Thompson, Hidden Obstacles
to Reentry] (“State and federal mandatory sentencing guidelines, generally, and for drug
offenders, specifically, have caused not only a surge in prison population, but have also
been responsible for dramatic increases in the length of sentences imposed and served.”);
see also Carla I. Barrett, Note, Does the Prison Rape Elimination Act Adequately Address
the Problems Posed by Overcrowding? If Not, What Will?, 39 NEW ENG. L. REV. 391, 39697 (2005) (describing the use of sentencing guidelines and mandatory minimum sentences
as keeping inmates in prison longer, making prisons “fill without simultaneously
emptying”); Richard C. Boldt, Rehabilitative Punishment and the Drug Treatment Court
Movement, 76 WASH. U. L.Q. 1205, 1207 (1998) (“[T]he designation of statutorilymandated minimum sentences of imprisonment for many offenses led to a dramatic increase
in the number of inmates in state and federal prisons.”); Editorial, Jailhouse Blues, N.Y.
TIMES, Nov. 22, 2004, at A30 (“[M]andatory sentencing policies for drug offenses have
driven the prison population across the nation to a staggering 1.4 million.”); Devah Pager,
Double Jeopardy: Race, Crime, and Getting a Job, 2005 Wis. L. Rev. 617, 618 n.3
[hereinafter Pager, Double Jeopardy] (explaining that “the chances of receiving a state
prison term after being arrested for a drug offense rose by more than 500% between 1980
and 1992” as a result of the adoption of mandatory sentencing laws, which were most often
used for drug offenses and which removed discretion from the sentencing judge to consider
a range of factors pertaining to both the individual and the offense).
62.
WRIGHT, supra note 45, at 156-60 (discussing the swelling of prison populations
as a result of ‘get tough’ policies in the 1970s); see also Eric Eckholm, Help for the Hardest
Part of Prison: Staying Out, N.Y. TIMES, Aug. 12, 2006, at A1 (“The 1980’s and 90’s were
an era of get-tough, no-frills punishment; inmate populations climbed to record levels while
education and training withered.”).
63.
See, e.g., Cal. Penal Code §§ 667, 1170.12 (West 1999); Mike Males & Dan
Macallair, Striking Out: The Failure of California’s “Three Strikes and You’re Out,” 11
STAN. L. & POL’Y REV. 65 (1999); Anthony C. Thompson, Hidden Obstacles to Reentry,
supra note 61, at 263; see also Editorial, ‘Three Strikes’ in California, N.Y. TIMES, Oct. 30,
2004, at A30.
States differ in how they define the “strike zone” (the type of crimes needed to
trigger a Three Strikes sentence), the number of strikes needed to “strikeout,” and the
meaning of a “strike out” (the length of time to be served). Some states, such as South
Carolina, require only two strikes to “strikeout.” VINCENT SCHIRALDI, JASON COLBURN &
ERIC LOTKE, A POLICY BRIEF BY THE JUSTICE POLICY INSTITUTE: THREE STRIKES AND
YOU’RE OUT: AN EXAMINATION OF THE IMPACT OF 3-STRIKE LAWS 10 YEARS AFTER THEIR
ENACTMENT, at tbl.1 (2003), http://www.soros.org/initiatives/justice/articles_publications/
publications/threestrikes_20040923/three_strikes.pdf. Others, such as Maryland, require

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Drugs”65—a subset or “twin” of the “War on Crime”66—which has
dramatically increased the number of arrests and convictions for drug
offenses67—often offenses for drug use and petty trafficking68—and
four. Id. Unlike the federal government and the other states that have since enacted threestrikes laws, California does not require the third-strike offense to be a violent, or even a
serious crime, to draw an enhanced sentence of twenty-five years to life. Id. at 4.
Note that nearly two-thirds of those sentenced under California’s Three Strikes laws are
imprisoned for nonviolent offenses. See id. at 4.
For an in-depth history of Three Strikes in California, see JOE DOMANICK, CRUEL JUSTICE:
THREE STRIKES AND THE POLITICS OF CRIME IN AMERICA’S GOLDEN STATE (2004). For a brief
description of the origins of Three Strikes in California, see Bill Jones, Why the Three
Strikes Law is Working in California, 11 STAN. L. & POL’Y REV. 23, 23-24 (1999).
64.
Truth-in-sentencing laws represent part of the trend that began in the late 1970s
and into the 1980s to reduce disparity in sentencing and to toughen penalties for certain
crimes. See DITTON & WILSON, supra note 57, at 2. First enacted in Washington State in
1984, and subsequently by the majority of the states and the District of Columbia, truth-insentencing laws require offenders to serve a large portion of their sentence. Id. at 1.
Although the definition of truth-in-sentencing varies among the States, most reduce the
difference between the sentence imposed and actual time served by restricting or eliminating
parole eligibility and good-time credits. Id. at 1, 3.
Because truth-in-sentencing laws necessarily require offenders to spend more time in prison,
state prison populations have exploded. CORRECTIONS PROGRAM OFFICE, U.S. DEP’T OF
JUSTICE, VIOLENT OFFENDER INCARCERATION AND TRUTH-IN-SENTENCING INCENTIVE
GRANTS: IMPLEMENTATION REPORT, JULY 1, 1999-JUNE 30, 2000 1 (2000), available at
http://www.ojp.usdoj.gov/BJA/grant/voitisImpReport.pdf; see also Nation’s Inmate
Population Increased 2.3 Percent Last Year, N.Y. TIMES, Apr. 25, 2005, at A14 (attributing
the rising prison population largely to get-tough policies enacted in the 1980s and 1990s,
such as Three Strikes provisions and truth-in-sentencing laws).
65.
President Ronald Reagan’s speech at the Department of Justice on October 14,
1982 declared “a war against the menace of crime” and an “unshakable” commitment “to do
what is necessary to end the drug menace and cripple organized crime.” President Ronald
Reagan, Speech at the Department of Justice (Oct. 14, 1982), in Text of President’s Speech
on Drive Against Crime, N.Y. TIMES, Oct. 15, 1982, at A20. See generally Boldt, supra note
61, at 1207 (stating that the United States declared a “war on drugs” in the 1980s); John S.
Goldkamp, The Drug Court Response: Issues and Implications for Justice Change, 63 ALB.
L. REV. 923, 943 (2000) (“[T]he federal government declared its ‘War Against Drugs’
during the Reagan and Bush administrations.”); Mark E. Thompson, Comment, Don’t Do
the Crime if You Ever Intend to Vote Again: Challenging the Disenfranchisement of ExFelons as Cruel and Unusual Punishment, 33 SETON HALL L. REV. 167, 174 (2002)
[hereinafter Mark E. Thompson, Don’t Do the Crime if You Ever Intend to Vote Again]
(discussing how the race of incarceration has skyrocketed since 1980 due to the combined
effect of three-strikes laws and the ‘war on drugs”); Wacquant, supra note 51, at 96
(discussing how Ronald Reagan launched the War on Drugs and that the administrations of
George Bush and William Jefferson Clinton expanded it).
66.
See ABRAMSKY, supra note 37, at 1.
67.
Margaret E. Finzen, Note, Systems of Oppression: The Collateral Consequences
of Incarceration and Their Effects on Black Communities, 12 GEO. J. ON POVERTY L. &

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consequently the number of persons incarcerated.69 According to
Wacquant, the War on Drugs is single-handedly responsible for the “swift
and steady deepening of the gap between the imprisonment rates of blacks
and whites.”70 Ryan S. King, Marc Mauer, and Malcolm C. Young of The
Sentencing Project contend, more broadly, that “[d]rug offenders have
represented the most substantial source of growth in incarceration in recent
decades, rising from 40,000 persons in prison and jail in 1980 to 450,000
today.”71 And in the prophetic words of Governor Brian Schweitzer of
Montana, “We’re losing a generation of productive people. My God, at the
rate we’re going, we’re going to have more people in jail than out of jail in
20 years.”72
POL’Y 299, 302-03 (2005) (discussing the growth of drug prosecutions and increase in
incarceration resulting from the ‘war on drugs’ and ‘get tough’ policies”); JAMES A.
INCIARDI, DUANE C. MCBRIDGE & JAMES E. RIVERS, DRUG CONTROL AND THE COURTS 64
(1996) (“Without question, the war on drugs had overburdening effects on the criminal
justice system.”); HUMAN RIGHTS WATCH, OFFENDERS WITH MENTAL ILLNESS, supra note
58, at 22 (“Almost one-third of new admissions are nonviolent drug offenders.”).
68.
Paul Farmer, The House of the Dead: Tuberculosis and Incarceration, in
INVISIBLE PUNISHMENT, supra note 54, at 239, 244; see also Feeley & Simon, supra note 59,
at 461 (“Drug use and its detection and control have become central concerns of the penal
system. No one observing the system today can fail to be struck by the increasingly tough
laws directed against users and traffickers, well-publicized data that suggest that a majority
of arrestees are drug users, and the increasing proportion of drug offenders sent to prison.”).
69.
Blumenson & Nilsen, supra note 57, at 61 (crediting the rise in prison population
to the “drug war that has been waged over those three decades”); KING & MAUER, THE
VANISHING BLACK ELECTORATE, supra note 15, at 21 (“Over the past twenty years, drug
policies have been the single most significant factor in contributing to the rise in
correctional populations . . . .”); see generally DOMANICK, CRUEL JUSTICE, supra note 63, at
213 (“Nationally, about one million Americans are arrested annually on drug charges, 80
percent of them just for marijuana, while the federal government has been spending $40
billion a year directly on our drug war, 80 percent of that targeted to marijuana.”).
70.
Wacquant, supra note 51, at 96.
71.
KING, MAUER & YOUNG, supra note 57, at 6. See also DITTON & WILSON, supra
note 57, at 5 (“The likelihood of going to prison upon arrest for drug offenses substantially
increased between 1980 and 1990 as the commitment rate soared from 19 per 1,000 arrests
to 103 per 1,000.”); Troy Duster, The New Crisis of Legitimacy in Controls, Prisons, and
Legal Structures, 26 AM. SOCIOLOGIST 20, 21 (1995) (“There is now a near complete
consensus among criminologists that drug control strategies account for most of the increase
of the U.S. prison population of the last decade.”);MICHAEL TONRY, MALIGN NEGLECT:
RACE, CRIME, AND PUNISHMENT IN AMERICA 81 (1995) [hereinafter TONRY, MALIGN
NEGLECT](“Drug-offense sentences are the single most important cause of the trebling of the
prison population in the United States since 1980.”).
72.
Kate Zernicke, With Scenes of Blood and Pain, Ads Battle Methamphetamine in
Montana, N.Y. TIMES, Feb. 26, 2006, §1, at 17. Note that Gov. Schweitzer’s comment refers
to the problem of arrest, conviction and imprisonment for metamphetamine production, use
and distribution–a drug that, for the most part, did not exist when the War on Drugs was

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Because of the emphasis on drug law enforcement and the popularity of
laws requiring incarceration as a penalty and longer periods of
incarceration when it is imposed, U.S. prisons have filled without
simultaneously emptying, resulting in severe overcrowding.73 While some
commentators contend that Americans possess a fetishistic fixation with
violence,74 U.S. prisons are exceptionally violent places, with inmates
frequently assaulting and killing each other and guards,75 and with guards

declared. But the attitude that drug addiction is a criminal issue necessitating long periods of
incarceration, rather than a public health problem requiring intensive treatment, carries over
from the “War on Drugs” (whose initial focus was crack, and to a lesser extent, marijuana
and heroin) and has resulted in the lost generation to which Gov. Schweitzer refers.
73.
At yearend 2004, twenty-four States and the Federal prison system reported
operating at 100% or more of their highest capacity.HARRISON & BECK, supra note 43, at 7.
To offer a specific example, the California prison system, which has been referred to as “the
most troubled in the nation,” has experienced such severe overcrowding that 16,000 inmates
have been assigned to cots in hallways and gyms, leading Governor Arnold Schwarzenegger
to declare a state of emergency in the prison system. Jennifer Steinhauer, Bulging, Troubled
Prisons Push California Officials to Seek a New Approach, N.Y. TIMES, Dec. 11, 2006, at
A18.
It bears mention that overcrowding in U.S. correctional facilities is not a recent
phenomenon. See, e.g., Rhodes v. Chapman, 452 U.S. 337, 356 (1981); Goldkamp, supra
note 65, at 944.
It also bears mention that while the United States incarcerates more individuals than any
other country and has subsequently faced problems with overcrowding, other countries have
also experienced overcrowding. See, e.g., Randal C. Archibold, After Prison Horror,
Dominican Republic Plans a Study, N.Y. TIMES, Mar. 9, 2005, at A4; Jean-Michel Caroit,
Gang Fight and Fire in Overcrowded Prison In Domican Republic Kill 133 Inmates, N.Y.
TIMES, Mar. 8, 2005, at A12.
74.
See WRIGHT, supra note 45, at 49 (“[V]iolence is an integral aspect of our
culture. . . . Violence is reinforced by violent sports, television, movies, and even Saturday
morning cartoons.”).
75.
Farmer v. Brennan, 511 U.S. 825, 853 n.* (1994) (Souter, J.) (observing
“[n]umerous court opinions document the pervasive violence among inmates in our state
and federal prisons,” listing nine examples); McGill v. Duckworth, 944 F.2d 344, 345 (7th
Cir. 1991), overruled on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994)
(“Prisons are dangerous places. Housing the most aggressive among us, they place violent
people in close quarters.”); Adam Liptak, Inmate Was Considered ‘Property’ of Gang,
Witness Tells Jury in Prison Rape Lawsuit, N.Y. TIMES, Sept. 25, 2005, § 1, at 14;
Steinhauer, supra note 73 (describing how cellblocks in California prisons are “teeming
with violence”); Wacquant, supra note 51, at 111 (stating that “‘what was once a repressive
but comparatively safe ‘Big House’ is now often an unstable and violent social jungle’”
(quoting ROBERT JOHNSON, HARD TIME: UNDERSTANDING AND REFORMING THE PRISON 133
(2d ed. 1996))); National Briefing, West: California: Inmates Injured in Brawls, N.Y.
TIMES, July 15, 2006, at A11 (reporting a brawl between African American and Hispanic
inmates in a Los Angeles County jail).

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occasionally initiating and encouraging attacks.76 According to Professor
William C. Sullivan, founder and Co-Director of the interdisciplinary
Human-Environment Research Laboratory at the University of Illinois at
Urbana-Champaign, whose research is discussed in greater detail in infra
Part III, “[w]hen animals have been caged or placed in otherwise unfit
habitats, they often become aggressive and even violent.”77 Overcrowding
in prisons renders an already unfit habitat worse—it exacerbates existing
tensions, increasing the likelihood of violence,78 including sexual assault
and rape.79 As one commentator remarks, incarceration “does not eliminate
76.
See, e.g., Hudson v. McMillian, 503 U.S. 1 (1992) (finding that guards who
shackled and handcuffed an inmate and beat him about the face and body, causing minor
bruises and swelling, loosened teeth, and a cracked dental plate had acted maliciously and
sadistically); Madrid v. Gomez, 889 F.Supp. 1146, 1161 (N.D. Cal. 1995) (concluding that
the Eighth Amendment’s restraint on using excessive force had been repeatedly violated by
guards at Pelican Bay State Prison).
Sometimes prison guards will arrange fights between prisoners for “amusement
and blood sport” DOMANICK, CRUEL JUSTICE, supra note 63, at 66, and use inmates as “tools
of punishment.” See, e.g., David M. Siegal, Note, Rape in Prison and AIDS: A Challenge
for the Eighth Amendment Framework of Wilson v. Seiter, 44 STAN. L. REV. 1541, 1546
(1992) (stating that some prison officials make homosexual rape easier to commit or do not
discourage it, to control inmates); Willie Wisely, Corcoran: Sex, Lies, and Videotapes, in
PRISON NATION, supra note 54, at 245, 245-51 (describing how one inmate beat and raped
prisoners in return for favored treatment).
77.
William C. Sullivan, Forest, Savanna, City: Evolutionary Landscapes and Human
Functioning, in URBAN PLACE, supra note 35, at 237, 243-44 [hereinafter, Sullivan, Forest,
Savanna, City] (“When animals are placed in unfit habitats, their social behavior suffers.”).
78.
See, e.g., Peter J. Duitsman, Comment, The Private Prison Experiment: A Private
Sector Solution to Prison Overcrowding, 76 N.C. L. REV. 2209, 2211 (1998)
(“[O]vercrowding has . . . increased the instances of violence and the development of
infectious and stress-related diseases within confinement facilities.”); Daniel L. Low,
Nonprofit Private Prisons: The Next Generation of Prison Management, 29 NEW ENG. J. ON
CRIM. AND CIV. CONFINEMENT 1, 25 (2003) (“Studies have found that certain prison
conditions can lead to increased violence, such as poor physical conditions, lack of
meaningful activities and programs, limited contact with visitors, overcrowding, and poor
staffing. These conditions increase violence both during incarceration and after release.”);
WRIGHT, supra note 45, at 160-63 (1985) (“Crowding in penal institutions may produce the
most volatile situation of all. . . . Crowding affects prison life in two ways: control of the
prison population is more difficult as individual disciplinary problems and major
disturbances increase, and individual deterioration is fostered.”). See generally Frances E.
Kuo & William C. Sullivan, Aggression and Violence in the Inner City: Effects of
Environment via Mental Fatigue, 33:4 ENV’T & BEHAVIOR 543, 543 (2001) [hereinafter Kuo
& Sullivan, Effects of Environment via Mental Fatigue] (noting the connection between
crowding and aggression and violence).
79.
Siegal, supra note 76, at 1550 (“Abysmal living conditions, tremendous
overcrowding, and internal socialization of prisoners create an environment where such
activity [sexual assaults and victimization] often becomes commonplace.”); HUMAN RIGHTS

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the opportunity to commit criminal acts, it simply displaces it. Criminals
are removed from the community, but they are placed in a setting where
they can victimize guards and other inmates. Crime in prison is common.
Inmates assault, rape, murder, and exploit one another.”80 To understand
prison violence in another way, recently, a trial court judge, recognizing the
hostility and aggression characteristic of prison, sentenced a 5’ 1’’
convicted child molester to ten years’ probation, instead of a substantial
prison sentence, because she felt that he was too small to survive
incarceration.81 If crime in prison is common—so much so that some
judges are unwilling to rely on it as a form of punishment—then it is no
wonder that prisons have been likened to a “tinderbox”82 and to an
incendiary device “all set for an explosion.”83 Those fortunate enough to
survive the violence and hostility must still confront the paralyzing
boredom.84 As one inmate explains, “The isolation and idleness are the
WATCH, NO ESCAPE: MALE PRISON RAPE IN U.S. PRISONS (2000),
http://www.hrw.org/reports/2001/prison/report.html (providing an in-depth report on male
prisoner-on-prisoner sexual abuse in the United States and describing how the growth of the
U.S. prison population and conditions of confinement have lead to sexual abuse and
harassment); Anderson v. Redman, 429 F.Supp. 1105, 1113 (D. Del. 1977) (stating that
overcrowding and understaffing leads to “an increase in theft, assault, and homosexual
rape”); see also ALLEN J. BECK & TIMOTHY A. HUGHES, BUREAU OF JUSTICE STATISTICS,
UNITED STATES DEP’T OF JUSTICE, SPECIAL REPORT: PRISON RAPE ELIMINATION ACT OF
2003: SEXUAL VIOLENCE REPORTED BY CORRECTIONAL AUTHORITIES, 2004 (July 2005),
available
at
http://www.ojp.usdoj.gov/bjs/pub/pdf/svrca04.pdf.
The
Department
acknowledges it underrepresents the true nature of sexual violence in prisons and jails. Id.
at 2 (“Due to fear of reprisal from perpetrators, a code of silence among inmates, personal
embarrassment, and lack of trust in staff, victims [of sexual violence] are often reluctant to
report incidents to correctional authorities.”).
80.
WRIGHT, supra note 45, at 122; see generally Prison Aryans Are Sentenced To
Life Terms, N.Y. TIMES, Nov. 22, 2006, at A24; Tori Richards, Aryan Brotherhood Leaders
Are Convicted in Murders, N.Y. TIMES, July 29, 2006, at A11 (on gangs attempting to “rule
the nation’s prisons”); John M. Broder, Trial Begins for Members Of Aryan Prison Gang,
N.Y. TIMES, Mar. 15, 2006, at A17 (on gang members terrorizing the inmate population);
Tori Richards, Murder Trial Yields Sharply Conflicting Portrayals of White Prison Gang,
N.Y. TIMES, July 14, 2005, at A14 (describing the Aryan Brotherhood as a criminal
enterprising using murder to keep its members in line).
81.
Reuters, Nebraska Will Appeal Man’s Sentence, N.Y. TIMES, May 27, 2006, at A9
(discussing the decision of Cheyenne County District Judge Kristine Cecava to sentence
Richard W. Thompson to probation rather than prison).
82.
WRIGHT, supra note 45.
83.
Id. (quoting Paul A. Gigot, Life in Prison, part 2, WALL ST. J., Aug. 20, 1981, at
1).
84.
Anderson v. Redman, 429 F.Supp. 1105, 1112 (D. Del. 1977) (“Idleness
diminishes inmate moral and is directly related to increased violence. Inmates who are idle
spend much more time exposed to negative influences, decreasing their desire to engage in
activities which might facilitate their ability to return productively to society.”); WRIGHT,

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worst. This is really doing hard time.”85
Obviously, the frequent use of incarceration as a criminal penalty has
adversely impacted the physical, psychological, and emotional well-being
of those individuals sentenced to prison.86 But its effect on the children,87
families,88 and the home communities of the prisoners,89 including the
supra note 45, at 167, 169-70 (“The unmitigated absence of anything constructive to do, the
forced idleness, is what is so distracting, so frustrating, and often so damaging. . . . People
with little to do, much like unnurtured plants, deteriorate, some physically, most
emotionally. People with little to do are more likely to resist authority, fight among
themselves, and get caught up in the chain reaction of mass disturbance.”).
85.
WRIGHT, supra note 45, at 169 (quoting Paul A. Gigot, Life in Prison, part 2,
WALL ST. J., Aug. 20, 1981, at 1).
86.
See sources cited supra note 84 and accompanying text. See also Garvin McCain
et al., The Relationship Between Illness Complaints and Degree of Crowding in a Prison
Environment, 8 ENV’T & BEHAVIOR 283, 283-89 (1976) (discussing the negative effects
overpopulation has on prisoner health, specifically high illness complaint rates); WRIGHT,
supra note 45, at 160-63 (describing the severe physical and psychological effects of
crowded penal institutions and the high rates of death, suicide and disciplinary infractions in
prisons with populations exceeding their capacities).
87.
Clear, supra note 54, at 188 (“Children who grow up in areas where substantial
amounts of human capital are not easily acquired struggle with inadequate schools, limited
leisure time choices, and insufficient formative supports.”); PRISONERS ONCE REMOVED:
THE IMPACT OF INCARCERATION AND REENTRY ON CHILDREN, FAMILIES, AND COMMUNITIES
(Jeremy Travis & Michelle Waul eds., 2004) [hereinafter PRISONERS ONCE REMOVED];
Zernicke, supra note 72 (reporting that in Montana, methamphetamine is responsible for 80
percent of the prison population, 90 percent of female inmates, and about half the children
in foster care in Montana as a result); see generally Butterfield, New Arena for Equality,
supra note 43 (“‘When you arrest a woman, you are also disrupting the lives of her
children.’” (quoting Ann Jacobs, Executive Director, Women’s Prison Association)).
88.
MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (Alan
Sheridan trans., Vintage Books 2d ed. 1995) 268 (1978) (stating that “the prison indirectly
produces delinquents by throwing the inmate’s family into destitution”); Donald Braman,
Families and Incarceration, in INVISIBLE PUNISHMENT, supra note 54, at 117, 117 (finding
that “the dramatic increase in the use of incarceration over the last two decades has in many
ways missed its mark,” punishing families of prisoners as much or more so than the
individual inmate); DONALD BRAMAN, DOING TIME ON THE OUTSIDE: INCARCERATION AND
FAMILY LIFE IN URBAN AMERICA (2004); TONRY, MALIGN NEGLECT, supra note 71, at 157
(stating that “[i]ncarceration of an employed father and husband may mean loss of the
family’s home and car, . . . [and] perhaps the creation of welfare dependency” in the family
members on the outside); PRISONERS ONCE REMOVED, supra note 87; see generally Erik
Eckholm, America’s ‘Near Poor’ Are Increasingly at Economic Risk, Experts Say, N.Y.
TIMES, May 8, 2006, at A14 (describing the economic and parenting struggles of Machele
Sauer, 34, mother of four, whose husband, because of a prior record, recently received a
long prison sentence for theft charges linked to a drug addiction); see generally Isabel
Wilkerson, A Success Story That’s Hard to Duplicate, N.Y. TIMES, June 12, 2005, at A24
(noting the research finding that supportive relationships, like marriages, are crucial to
mobility out of poverty, but that high rates of incarceration among black men makes

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public safety of those communities and their ability to address various
social problems,90 as well as on the prison communities—the (frequently
rural) communities where the prisons are located91—is no less significant
and
raises
many
economic,92
environmental,93
legal,94
marriage impractical for many poor single mothers).
89.
DEMELZA BAER ET AL., URBAN INSTITUTE, JUSTICE POLICY CENTER,
UNDERSTANDING THE CHALLENGES OF PRISONER REENTRY: RESEARCH FINDINGS FROM THE
URBAN
INSTITUTE’S
PRISONER
REENTRY
PORTFOLIO,
http://www.urban.org/
UploadedPDF/411289_reentry_portfolio.pdf (discussing research suggesting that “high
rates of incarceration and reentry of community residents through the revolving door of the
criminal justice system may . . . destabilize the[] communities [where offenders come from
and to which they frequently return]”); LYNCH & SABOL, supra note 30, at 3 (“If, as research
shows, incarceration is related to lower levels of employment and earnings, then the
removal and return of large volumes of ex-prisoners to working-class communities can have
potentially negative consequences for these communities.”); Marc Schindler & Joyce A.
Arditti, The Increased Prosecution of Adolescents in the Adult Criminal Justice System:
Impacts on Youth, Family, and Community, 32 MARRIAGE AND FAMILY REVIEW 165, 175
(2001) (arguing that the result of “shockingly high” rates of incarceration for minorities is a
“similarly disparate and devastating impact” on the minority communities these inmates
come from, including disrupted family relationships and the loss of significant numbers of
potential wage earners, leading to a “weakening” of the entire community as “families are
fragmented and large segments of the population are marginalized” due to incarceration);
PRISONERS ONCE REMOVED, supra note 87.
90.
Schindler & Arditti, supra note 89, at 176 (“[W]hile high incarceration rates may
help reduce crime, these high rates may reach a point where so many people in a particular
community are going to prison that it begins to destabilize the community and becomes a
factor that increases crime.”). See also infra Part II.B discussing “informal social control,”
as well as infra Part III.B discussing Avi Brisman, Double Whammy: Collateral
Consequences of Conviction and Imprisonment for Sustainable Communities and the
Environment, 28 WM. & MARY ENVTL. L. & POL’Y REV. 423 (2004) [hereinafter Brisman,
Double Whammy]; see generally BAER ET AL., supra note 89, at 16 (discussing how prisoner
reentry presents a tremendous public safety dilemma).
91.
In addition to the effect of incarceration on the prisoners’ home communities, see
sources cited supra note 89, incarceration also has an impact on the communities where
convicted offenders are incarcerated. See Part II.B.3.b discussing the U.S. Census Bureau’s
application of the “usual residence rule” to prisoners and how this impacts (rural) prison
communities; Part III.A discussing effect of prisons on water supplies in arid areas.
92.
For a discussion of the economic burden of incarceration on the home
communities of prisoners–usually urban communities, see infra note 411 in Part II.B. For a
discussion of the economic effects of prisons on the communities where the prisons are
located–usually small towns in rural areas, see infra note 414 in Part II.B. For a discussion
of the economic burden on states of building and maintaining prisons, see, e.g., Fox
Butterfield, Tight Budgets Force States to Reconsider Crime and Penalties, N.Y. TIMES,
Jan. 21, 2002, at A1 (“After three decades of building more prisons and passing tougher
sentencing laws, many states are being forced by budget deficits to close some prisons, lay
off guards and consider shortening sentences”); Justice Policy Institute, What the States are
Doing: State by State Summary of Policy Innovations, http://justicepolicy.org/

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moral/philosophical,95 social,96 and public health concerns.97 Recently, the
article.php?id=27 (last visited Apr. 21, 2006) (discussing how various states are closing
prisons, scaling back mandatory sentences, and diverting non-violent drug offenders
convicted of drug possession from prison into treatment to cut corrections costs).
Consider also the indirect economic effects of incarceration, such as the reduced tax
revenues of employees earning lower incomes due to a criminal record, or the blow to
government budgets of welfare payments for children of convicts. See JENS SOERING, AN
EXPENSIVE WAY TO MAKE BAD PEOPLE WORSE: AN ESSAY ON PRISON REFORM FROM AN
INSIDER’S PERSPECTIVE 7-8 (2004).
93.
See infra Part III.A discussing effect of prisons on water supplies in arid areas.
94.
The frequent use of incarceration as a criminal penalty mentioned in the text has
resulted in litigation regarding conditions of confinement, such as the challenge made to
overcrowded living conditions in Anderson v. Redman, 429 F.Supp. 1105 (D. Del. 1977), as
well as suits brought regarding some of the sentencing schemes mandating lengthy prison
terms. Most constitutional challenges to “Three Strikes and You’re Out” legislation have
been unsuccessful. See, e.g., Jones, supra note 63, at 25 n.24 (listing California appellate
court decisions that held that the state’s Three Strikes legislation did not violate the Eighth
Amendment).
95.
See, e.g., Norval Morris, The Honest Politician’s Guide to Sentencing Reform, in
THE SOCIO-ECONOMICS OF CRIME & JUSTICE 303, 310 (Brian Forst ed., 1993) (calling
mandatory sentences “political gimmicks”).
96.
For a discussion of how incarceration bears on race relations, see, e.g., RYAN S.
KING & MARC MAUER, AGING BEHIND BARS: “THREE STRIKES” SEVEN YEARS LATER 13
(Aug. 2001), http://www.sentencingproject.org/pdfs/9087.pdf (“The racial disparities
produced by ‘three strikes’ largely result from the fact that African-Americans have higher
rates of arrest, and therefore prior convictions, than do whites. Whether due to greater
involvement in crime or racial bias in the criminal justice system, the result is that minorities
become more likely candidates for prosecution under habitual offender laws.”); Tracy
Huling, Building a Prison Economy in Rural America, in INVISIBLE PUNISHMENT, supra note
54, at 197, 210-12 (noting that the push to build prisons in predominantly white, rural areas,
to hold prisoners who are predominantly people of color, exacerbates, rather than soothes,
racial tension); Bruce Western, Becky Pettit, & Josh Guetzkow, Black Economic Progress
in the Era of Mass Imprisonment, in INVISIBLE PUNISHMENT, supra note 54, at 165.
For a discussion of how the prison expansion has diverted funds from social
programs, “especially interventions such as early childhood education and family-based
therapy–[which] would lead to an across-the-board reduction in crime,” see Winning the
War on Drugs, supra note 50, at 1488-89.
97.
BAER ET AL., supra note 89 (discussing the high rates of communicable diseases
for U.S. prisoners); PAUL FARMER, INFECTIONS AND INEQUALITIES: THE MODERN PLAGUES
32, 44, 232 (1999) (discussing deadly outbreaks of multidrug-resistant tuberculosis
(“MDRTB”) in U.S. hospitals and jails); Brent Staples, Treat the Epidemic Behind Bars
Before It Hits the Streets, N.Y. TIMES, June 22, 2004, at A18 (“The diseases that incubate
behind bars don’t just stay there. They come rushing back to the general population–and to
the overburdened public health system”); Silja J. A. Talvi, Hepatitis C: A “Silent Epidemic”
Strikes U.S. Prisons, in PRISON NATION, supra note 54, at 181, 181, 186 (stating that “[t]he
nation’s prison populations are now harboring the highest concentrations of hepatitis C in
the country,” and asking “‘Do we want people coming back out sicker than they were when

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reentry of newly released prisoners to the community has been added to the
mix and has garnered significant public (and bipartisan) attention.98 For
example, in 2000, then-Attorney General Janet Reno proclaimed that “the
reentry of offenders from prison back to the communities where the
problem started in the first place . . . [is] one of the most pressing problems
we face as a nation.”99 Similarly, in his 2004 State of the Union address,
President George W. Bush proclaimed: “We know from long experience
that if [ex-prisoners] can’t find work, or a home, or help, they are much
more likely to commit more crimes and return to prison.”100 “America is
the land of the second chance,” he continued, “and when the gates of the
prison open, the path ahead should lead to a better life.”101 Neither
Attorney General Reno’s declaration nor President Bush’s announcement
was hyperbolic rhetoric. According to James P. Lynch and William J.
Sabol of the Urban Institute, a non-profit non-partisan research institute
that examines American cities and urban populations, “[t]he massive
increase in incarceration in the United States that occurred during the past
20 years has now turned public attention toward the consequences of
releasing large numbers of prisoners back into society.” 102
To understand the extent of the reentry issue, consider that of the greater
they went in?’” (quoting Jackie Walker of ACLU’s National Prison Project)).
98.
See infra notes 99-102. See also Dan Richard Beto, Issues in Reentry, 68 FED.
PROBATION 78 (2004) (“The issue of prisoner reentry, while appreciated as important by
criminal justice practitioners and academics, has, until recently, received woefully
inadequate attention by policymakers.”). See generally CARL UPCHURCH, CONVICTED IN THE
WOMB: ONE MAN’S JOURNEY FROM PRISONER TO PEACEMAKER 107 (1997) (describing a lack
of re-entry assistance).
99.
Attorney General Janet Reno, Remarks at John Jay College of Criminal Justice on
the Reentry Court Initiative (Feb. 10, 2000), available at http://www.usdoj.gov/
archive/ag/speeches/2000/doc2.htm.
100.
President George W. Bush, State of the Union Address (Jan. 20, 2004), available
at http://www.whitehouse.gov/news/releases/2004/01/20040120-7.html. In his 2004 State of
the Union address, President Bush proposed a four-year, $300 million initiative to reduce
recidivism. Id. See generally Department of Justice, Office of Justice Programs (Reentry),
http://www.reentry.gov (last visited Mar. 18, 2007).
101.
President George W. Bush, supra note 100. One researcher takes umbrage with
the assertion that the United States is a land of second chances due to the difficulties
offenders face in avoiding or mitigating the collateral penalties of a conviction. MARGARET
COLGATE LOVE, RELIEF FROM THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION:
A STATE-BY-STATE RESOURCE GUIDE (2005), http://www.sentencingproject.org/rightsrestoration.cfm (follow “Executive Summary” hyperlink at bottom of page). Love contends
that “if rehabilitation of criminal offenders is a desirable social goal, it would be helpful to
begin serious discussion of the growing contrary pressures that seem to consign all persons
with a criminal record to the margins of society, and to a permanent outcast status in the
eyes of the law.” Id. at 12.
102.
LYNCH & SABOL, supra note 30, at 2.

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than 2.2 million individuals currently incarcerated, ninety-seven percent of
them will eventually be released; approximately 600,000 per year on
average.103 Sixty-seven percent of ex-offenders are rearrested within three
years of leaving prison;104 the highest risk of recidivism is in the first six
months after release.105 (Recently released prisoners are also at a much
greater risk of suicide than the general population, especially in the first
month after release and continuing throughout the first year after
release.)106 Thirteen million Americans have received felony convictions
and served time behind bars107—a population larger than that of some
countries.108
Ex-offenders encounter a number of obstacles to reentry into society—
often referred to as the “collateral consequences” of a criminal
conviction.109 Collateral consequences are civil disabilities that attach to,
but are legally separate from, the criminal sentence.110 They affix
103.
Bureau of Justice Statistics, U.S. Dep’t of Justice, Reentry Trends in the U.S.:
Highlights, http://www.ojp.usdoj.gov/bjs/reentry/reentry.htm (last visited Apr. 01, 2007);
Devah Pager, The Mark of a Criminal Record 2 (June 2002) [hereinafter Pager, The Mark of
a Criminal Record], available at http://www.northwestern.edu/ipr/publications/
papers/pageraudit.pdf. “In the year 2000 alone, corrections officials discharged
approximately 600,000 individuals, with most returning to core communities from which
they came.” Anthony C. Thompson, Hidden Obstacles to Reentry, supra note 61, at 256.
104.
BAER ET AL., supra note 89, at 2; Adam Cohen, supra note 30; Pager, Double
Jeopardy, supra note 61, at 619 (“Of those recently released, nearly two-thirds will be
charged with new crimes, and over 40% will return to prison within three years.”).
105.
HUMAN RIGHTS WATCH, OFFENDERS WITH MENTAL ILLNESS, supra note 58, at 193.
106.
See Daniel Pratt et al., Suicide in Recently Released Prisoners: A PopulationBased Cohort Study, 368 LANCET 119 (2006); Deborah Harding-Pink, Mortality Following
Release from Prison, 30 MED SCI LAW 12 (1990); Matti Joukamaa, The Mortality of
Released Finnish Prisoners: a 7 Year Follow-up Study of the WATTU Project, 96 Forensic
Sci Int’l 11 (1998).
107.
Brent Staples, The Federal Government Gets Real About Sex Behind Bars, N.Y.
TIMES, Nov. 27, 2004, at A14; Travis, supra note 59, at 18 (noting that the estimated
thirteen million felony convictions in the United States represents approximately 6 percent
of the adult population).
108.
The figure of thirteen million is greater than the population of over 60 countries,
including Austria, Bolivia, Denmark, Ecuador, Finland, Greece, Ireland, Laos, New
Zealand, Sweden, Switzerland, and United Arab Emirates. World Gazetteer,
http://www.world-gazetteer.com/ (follow “countries/cities” hyperlink in top menu) (last
visited Mar 24, 2007).
109.
Demleitner, Preventing Internal Exile, supra note 32, at 153. For examples of how
courts have defined “collateral consequences,” see Alicia Werning Truman, Note,
Unexpected Evictions: Why Drug Offenders Should be Warned Others Could Lose Public
Housing if They Plead Guilty, 89 IOWA L. REV. 1753, 1755 n.10 (2004).
110.
Pinard, supra note 30, at 1078, 1080; see also JAMIE FELLNER & MARC MAUER,
THE SENTENCING PROJECT & HUMAN RIGHTS WATCH, LOSING THE VOTE: THE IMPACT OF

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“automatically to the conviction or are imposed at the discretion of [both
state and federal] governmental or regulatory agencies independent of the
criminal justice system.”111 While collateral consequences usually pertain
only to felony convictions, they may also apply to misdemeanor
convictions.112 Frequently, collateral consequences outlive the direct
sentences imposed on defendants,113 leaving one commentator to state:
“Ex-offenders remain banished from mainstream society. Even upon
expiration of the maximum sentence, collateral sentencing consequences
continue to remove the ex-offender from society . . . by bestowing outlaw
status upon her and preventing her from regaining full membership
rights.”114 Other commentators regard the continuation of collateral
consequences beyond the duration of the sentence as so punitive as to
resemble “double jeopardy.”115 And yet another laments: “In this brave
new world, punishment for the original offense is no longer enough; one’s
debt to society is never paid.”116
FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES at part II (Oct. 1998),
http://www.hrw.org/reports98/vote/index.html (noting that collateral consequences are
separate from “penal sanctions such as fines or imprisonment”).
111.
Pinard, supra note 30, at 1080-81; FELLNER & MAUER, supra note 110; see also
Truman, supra note 109, at 1755 (“With collateral consequences . . . the punishment is not
imposed until some future date (if at all) and usually a different court or administrative body
commences the action.”). Because collateral consequences attach automatically to the
conviction, one commentator has compared them to mandatory minimum sentences. See
Demleitner, Preventing Internal Exile, supra note 32, at 161 (“Like mandatory sentences,
[collateral consequences] follow automatically upon conviction of the offense without
considering factors such as the offender’s criminal background.”).
112.
Pinard, supra note 30, at 1078 (explaining that collateral consequences apply to
both felony and misdemeanor convictions); ISPAHANI & WILLIAMS, PURGED!, supra note 42,
at 7 (explaining that “some misdemeanors also disqualify individuals from voting in
Maryland”); see also Ewald, Civil Death, supra note 15, at 1057 (explaining how the term
“felon disenfranchisement” is a misnomer). See also sources cited supra note 16 and
accompanying text.
113.
Pinard, supra note 30, at 1078 (stating that collateral consequences “often outlast
the direct sentences imposed on defendants”).
114.
Demleitner, Preventing Internal Exile, supra note 32, at 159.
115.
Pager, Double Jeopardy, supra note 61, at 617 (describing the “exclusion of exoffenders from valuable social and economic opportunities” as “akin to the legal concept of
double jeopardy: being punished more than once for the same crime”).
116.
Travis, supra note 59, at 19. As Loïc Wacquant describes:
In other liberal-democratic societies, the status dishonor and civic disabilities of
being a prisoner are temporary and limited: they affect offenders while they are
being processed by the criminal justice system and typically wear off upon
coming out of prison or shortly thereafter; to ensure this, laws and administrative
rules set strict conditions and limits to the use and diffusion of criminal justice
information. Not so in the United States, where, on the contrary, (1) convicts are

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Collateral consequences are creatures of both state and federal law,
although state law governs the preponderance of them.117 For example, a
state may impose certain occupational licensing restrictions for ex-felons,
which may exclude ex-offenders from gaining employment in hundreds of
job categories, including accounting, barbering, beer and liquor
distribution, education, dentistry, funeral services (e.g., undertaking and
embalming), health care, law, medicine, nursing, physical therapy,
plumbing, private security and real estate.118 Considering that most crimes
are committed at young ages—the same years in which individuals are
most likely to learn a trade, develop a career, and experience wage
increases119—individuals who spend their teens, twenties and thirties in
subjected to ever-longer and broader post-detention forms of social control and
symbolic branding that durably set them apart from the rest of the population; (2)
the criminal files of individual inmates are readily accessible and actively
disseminated by the authorities; (3) a naturalizing discourse suffused with genetic
phraseology and animalistic imagery has swamped public representations of crime
in the media, politics, and significant segments of scholarship.”
Wacquant, supra note 51, at 112-13.
117.
Demleitner, Preventing Internal Exile, supra note 32, at 156 (noting, however,
that federal law “governs an increasing number”). For federally-imposed collateral
consequences, see OFFICE OF THE PARDON ATTORNEY, UNITED STATES DEPT. OF JUSTICE,
FEDERAL STATUTES IMPOSING COLLATERAL CONSEQUENCES UPON CONVICTION. available at
http://www.usdoj.gov/pardon/collateral_consequences.pdf.
118.
See Brisman, Double Whammy, supra note 90, at 425-26, 432-35 (discussing state
occupational licensing restrictions and how they reduce the employment possibilities for exoffenders); Demleitner, Preventing Internal Exile, supra note 32, at 156 (listing examples of
employment that require professional licenses which ex-offenders cannot acquire); Finzen,
supra note 67, at 315-17 (discussing federal and state restrictions on employment); LEGAL
ACTION CENTER (LAC), AFTER PRISON: ROADBLOCKS TO REENTRY: A REPORT ON STATE
LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS 10-11 (2004),
http://www.lac.org/lac/upload/lacreport/LAC_PrintReport.pdf [hereinafter ROADBLOCKS TO
REENTRY] (providing a state-by-state description of state licensing restrictions on
employment); Saxonhouse, supra note 15, at 1610-14 (discussing hurdles to employment
for ex-offenders, including bans on public employment and regulations on private
employment).
119.
See, e.g., BAER ET AL., supra note 89, at 4 (noting that during the period of
incarceration, an individual loses the opportunity to gain marketable work experience); Bob
Herbert, Locked Out at a Young Age, N.Y. TIMES, Oct. 20, 2003 (noting “the 16-50-24 age
range is typically the time when young people ‘accumulate human capital in the form of
formal education attainment or work experience in the labor market.’” (quoting Dr. Neeta P.
Fogg, a senior economist at Northeastern University’s Center for Labor Market Studies and
co-author of a study on education and the youth labor market in Illinois)).
According to the Bureau of Justice Statistics, in 2004, the highest number of sentenced
prisoners were found in the 25-29 age range. HARRISON & BECK, supra note 43, at 8. The
next highest number were 30-34. Id. See also MATTHEW R. DUROSE & CHRISTOPHER J.
MUMOLA, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FACT SHEET: PROFILE OF

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prison, rather than in the workforce, face an uphill battle to becoming
legitimate members of that workforce upon reentry.120 Those individuals
who have marketable job skills, gained either before121 or during
incarceration,122 frequently realize upon reentry that the licensing
restrictions prevent them from putting those skills to use.123 Even if
licensing restrictions are not an issue, ex-offenders may encounter
occupational bars simply because of their criminal records.124 This is
NONVIOLENT OFFENDERS EXITING STATE PRISONS 1, 3 (2004), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/pnoesp.pdf (“An estimated 9 of 10 nonviolent
offenders discharged from [15 state prisons in 1994] were male and about two-thirds were
under age 34.”); Lincoln Quillian & Devah Pager, Black Neighbors, Higher Crime? The
Role of Racial Stereotypes in Evaluations of Neighborhood Crime, 107 AM. J. OF SOC. 717,
724 (Nov. 2001) [hereinafter Quillian & Pager, Black Neighbors, Higher Crime?] (noting
“the demographic fact that young men commit a disproportionate share of all crime”).
120.
See Brisman, Double Whammy, supra note 90 at 442 n.99 and accompanying text;
MERCER L. SULLIVAN, “GETTING PAID”: YOUTH CRIME AND WORK IN THE INNER CITY 58
(1989) (“The age period from the teen years into the early twenties is described as one in
which labor market entrants explore various job possibilities, . . . seek[ing] employment that
suits their abilities and tastes and decid[ing] whether and how to invest in education and
training.”); see generally Herbert, supra note 119 (“[Y]oungsters who are left out of [the
work experience during the 16-to-24 age range] . . . can face significant barriers to
employment success for the rest of their lives.”); Western, Pettit, & Guetzkow, supra note
96, at 176 (“[I]ncarceration erodes job skills. At a minimum, time in prison or jail limits the
acquisition of work experience that would be obtained on the open labor market. . . .
[I]ncarceration [also] undermines social connections to good job opportunities.”).
Note that those who do find work after release do not necessarily find full-time or
consistent employment. See BAER ET AL., supra note 89.
121.
Saxonhouse, supra note 15, at 1611 (stating that even those individuals possessing
“highly marketable skills prior to their convictions, often face legal barriers to
employment”); see also Finzen, supra note 67, at 317 (“The inability to gain or improve
valuable labor skills while in prison is particularly frustrating since many inmates enter
prison without the education that is necessary to succeed in the job market and could greatly
benefit from skills training.”).
122.
Note that as the number of individuals incarcerated has skyrocketed, educational
and vocational programming in prison has been drastically reduced. BRUCE WESTERN,
VINCENT SCHIRALDI & JASON ZIEDENBERG, JUSTICE POLICY INSTITUTE, EDUCATION AND
INCARCERATION 10 (2003), http://www.soros.org/initiatives/justice/articles_publications/
publications/education_incarceration_20030828/EducationIncarceration1.pdf (“Not only is
our use of incarceration highly concentrated among men with little schooling, but
corrections systems are doing less and less to ‘correct’ the problem by reducing educational
opportunities for the growing number of prisoners.”).
123.
Brisman, Double Whammy, supra note 90, at 423-24.
124.
Travis, supra note 59, at 22 (“Th[e] expansion of legal barriers has been
accompanied by an increase in the ease of checking criminal records . . . . One’s criminal
past [has] bec[o]me both more public and more exclusionary, limiting the universe of
available work.”); see also ABRAMSKY, supra note 37, at 164 (noting how employers in
Tennessee weed out job applicants with felony records); see generally Wacquant, supra

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especially true in states that permit prospective employers to inquire about
and rely upon criminal records in making employment decisions.125 Given
the dearth of available unskilled labor positions,126 it is no wonder that
unemployment among ex-prisoners—with estimates ranging between
twenty-five and forty percent127—frequently contributes to a return to
criminal activity.128
note 51, at 113 (discussing how states such as Illinois, Florida, and Texas have put entire
inmate data bases on line “making it possible for anyone to delve into the ‘rap sheet’ of
prisoners via the World Wide Web, and for employers and landlords to discriminate more
broadly against ex-convicts in complete legality”).
125.
ROADBLOCKS TO REENTRY, supra note 118, at 10-11 (providing a state-by-state
description of state hiring policies with respect to individuals with arrest and conviction
records); Jennifer Leavitt, Comment, Walking a Tightrope: Balancing Competing Public
Interests in the Employment of Criminal Offenders, 34 CONN. L. REV. 1281, 1286-98 (2002)
(discussing the use of arrest and conviction records in employment settings); see also
Editorial, A Catch-22 for Ex-Offenders, N.Y. TIMES, Apr. 6, 2004, at A24 (“Thirty-seven
states permit prospective employers and all state licensing agencies to ask about and weigh
arrests that never led to conviction. In addition, employers in most states can simply fire
anyone who is discovered to have a criminal record, regardless of the circumstance.”
(emphasis added)).
126.
Demleitner, Preventing Internal Exile, supra note 32, at 156 (describing the
“increasingly negative economic impact” of excluding ex-offenders as low-skilled jobs
“continue to disappear”); Anthony C. Thompson, Hidden Obstacles to Reentry, supra note
61, at 269 (noting that “[a] growing number of unskilled labor positions have shifted off
shore,” such that the types of jobs ex-offenders used to acquire after their release “have all
but disappeared,” resulting in “diminished employment opportunities for those with and
without criminal records”).
127.
Workforce Investment Act–Demonstration Grants; Solicitation for Grant
Applications–Prisoner Re-Entry Initiative, 70 Fed. Reg. 16853 (Apr. 1, 2005); Pager,
Double Jeopardy, supra note 61, at 617 (“Unemployment rates for ex-offenders range from
25% to 40%; only a fraction of ex-offenders are able to find jobs paying a living wage.”).
128.
While a number of scholars and commentators have noted the link between
employment and reduced rates of recidivism (see below), the phenomenon can be
understood with a number of criminological theories, perhaps most compellingly with
Robert Merton’s version of “strain theory” and its more recent permutation, “institutional
anomie theory” (also known as “American Dream theory”), promulgated by Steven Messner
and Richard Rosenfeld. See Robert K. Merton, Social Structure and Anomie, 3 AM. SOC.
REV. 672 (1938) (suggesting that if culturally-desired goals are not equally attainable to all
social classes through accepted means, then illegitimate methods may be used to realize
those goals); STEVEN F. MESSNER & RICHARD ROSENFELD, CRIME AND THE AMERICAN
DREAM (1994) (suggesting that the American Dream has fostered an intense desire for
material success and that if the opportunities for this success are not genuinely open to
everyone, then those individuals without legitimate modes of achieving it will turn to
crime).
For a discussion of the relation between joblessness and recidivism rates, see, e.g.,
BAER ET AL., supra note 89, at 4 (noting that “employment is associated with lower rates of
reoffending, and higher wages are associated with lower rates of criminal activity” and

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Although the employment obstacles which ex-offenders face are
significant in and of themselves, ex-offenders rarely encounter just one
collateral consequence and are frequently not spared the hurdles of
multiple, synergistically challenging collateral consequences.129 Thus, in
addition to barriers to employment,130 ex-offenders may be prohibited from
receiving public assistance and food stamps131 and forbidden from
becoming tenants in public housing developments—or forbidden from even
visiting friends and relatives (including one’s own children) in public
housing developments132—which can cause many to revert to

discussing the reluctance of employers to hire former prisoners); Pager, The Mark of a
Criminal Record, supra note 103, at 2-3 (stating that “incarceration is associated with
limited future employment opportunities and earnings potential,” which, in turn, are
significant predicters of recidivism); Christopher Uggen & Jeremy Staff, Work as a Turning
Point for Criminal Offenders, 5 CORRECTIONS MANAGEMENT QUARTERLY 1, 14 (2001)
(describing employment as “one of the most important vehicles for hastening offender
reintegration and desistance from crime,” but cautioning that the quality of such
employment was relevant, describing ex-offenders who obtained high-quality employment
as “less likely to be rearrested than those who obtained poor-quality work”).
129.
See Finzen, supra note 67, at 321 (“In isolation, each collateral consequences law
makes rehabilitation challenging for ex-offenders; collectively, these laws make
reintegration even more difficult, if not impossible, when they intersect to impact exoffenders all at once.”); see also ABRAMSKY, supra note 37, at 164 (“[T]rapped in poverty,
many [black men] turn to crime, and convicted of crime, they then are barred from many
walks of life and remain mired in poverty.”).
130.
Naturally, “[t]he effect of depriving ex-offenders of certain employment
opportunities will depend on that person’s educational and professional background and the
state and typology of the current economy.” Demleitner, Preventing Internal Exile, supra
note 32, at 156.
131.
21 U.S.C. § 862a (2000) (denying benefits and assistance for certain drug-related
convictions); ROADBLOCKS TO REENTRY, supra note 118, at 12-13 (providing a state-by-state
description of restrictions on public assistance and food stamps; Gwen Rubinstein & Debbie
Mukamal, Welfare and Housing–Denial of Benefits to Drug Offenders, in INVISIBLE
PUNISHMENT, supra note 54, at 37, 40-43 (discussing welfare and food stamp eligibility for
individuals with drug felony convictions); FEDERAL STATUTES IMPOSING COLLATERAL
CONSEQUENCES UPON CONVICTION, supra note 117, at 10 (explaining that anyone convicted
of a felony for conduct “involv[ing] the possession, use, or distribution of drugs is not
eligible to receive food stamps or temporary assistance to needy families, and the amount
payable to any family or household of which such a person is a member is reduced
proportionately”); Wacquant, supra note 51, at 119-20 (describing the Work Opportunity
and Personal Responsibility Act of 1996 as “banish[ing] most ex-convicts from Medicaid,
public housing, Section 8 vouchers, and related forms of assistance”).
132.
Rubinstein & Mukamal, supra note 131, at 43-46, 48 (providing an overview of
federal housing laws that render those with criminal histories ineligible for public housing);
Finzen, supra note 67, at 312-15 (discussing loss of federally funded public housing);
FEDERAL STATUTES IMPOSING COLLATERAL CONSEQUENCES UPON CONVICTION, supra note
117, at 10 (explaining that certain public housing benefits may be revoked or limited upon

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lawlessness.133 This denial of federal benefits is troubling in that it is
inconsistent with the whole purpose of welfare (and arguably imposes a
greater economic burden on federal, state and local governments134). As
Professor Nora V. Demleitner points out, “[t]he welfare system provides a
threshold beyond which no member of society should fall, while at the
same time assisting recipients in getting back into the labor market.”135 The
refusal of food stamps and public housing to ex-offenders, however,
virtually ensures their free fall. According to Human Rights Watch, the
“One Strike and You’re Out” policy of exclusion from federally subsidized
housing136 condemns those possessing criminal records to lives of
insecurity and transience fraught with an ever-present lure of crime:
Exclusions based on criminal records ostensibly protect existing
tenants. There is no doubt that some prior offenders still pose a risk and

conviction of a crime); see also 42 U.S.C. § 1437f(d)(1)(b)(iii) (2000) (listing manner in
which criminal activity may be grounds for terminating tenancy in public housing); 42
U.S.C. § 1437n(f)(1)-(2) (2000) (treating conviction for methamphetamine production as
grounds for immediate termination of tenancy and permanent prohibition of occupancy or
assistance under § 1437f); 42 U.S.C. § 1437d(q) (2000) (requiring provision of criminal
records by law enforcement to public housing agencies upon request); HUMAN RIGHTS
WATCH, NO SECOND CHANCE: PEOPLE WITH CRIMINAL RECORDS DENIED ACCESS TO PUBLIC
HOUSING 3 (Nov. 2004), http://hrw.org/reports/2004/usa1104/usa1104.pdf [hereinafter NO
SECOND CHANCE] (discussing the categories of people who are barred under federal law
from admission to public housing, as well as the categories of applicants to whom local
public housing authorities (PHAs) have discretion to deny admission); ROADBLOCKS TO
REENTRY, supra note 118, at 16 (providing a state-by-state description of restrictions on
public housing); Eckholm, supra note 62 (describing how a recently released offender
cannot live with his girlfriend and son in public housing because of his conviction); see
generally BAER ET AL., supra note 89 (noting that the process of procuring housing may be
complicated by the lack of affordable and available housing, legal barriers and regulations,
prejudices against ex-offenders, and stringent eligibility requirements for federally
subsidized housing).
133.
See Brisman, Double Whammy, supra note 90, at 446-47.
134.
Rubinstein & Mukamal, supra note 131, at 49 (“Blanket policies that deny decent,
safe, and affordable housing to individuals with criminal records and their families for long
periods of time create challenges not only for the returning offender and his or her family
but for the community that must absorb the criminal justice, shelter, and child welfare costs
as well.”).
135.
Demleitner, Preventing Internal Exile, supra note 32, at 158; see also id. at 159
(“The U.S. welfare state was built on the premise that the state is socially responsible for
those who temporarily fall on hard times.”).
136.
President William J. Clinton, State of the Union Address (January 23, 1996),
available at http://www.gpoaccess.gov/sou/index.html (urging a “one strike and you’re out”
rule for public housing. See Rubinstein & Mukamal, supra note 131, at 47-48 (finding that
many public housing authorities “exclude applicants with any kind of criminal background,
not just those with drug-related and violent convictions”).

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may be unsuitable neighbors in many of the presently-available public
housing facilities. But U.S. housing policies are so arbitrary, overbroad,
and unnecessarily harsh that they exclude even people who have turned
their lives around and remain law-abiding, as well as others who may
never have presented any risk in the first place. . . .
....
[Such exclusions leave people with] no housing options other than those
which . . . [are] rife with domestic abuse, violence, crime, and
surrounded by harmful drug and alcohol use.
....
Women may be forced to consider returning to an abuser to avoid
homelessness . . . . [or] find themselves having to exchange sex for
protection, money, or a place to stay.
....
People who are inadequately housed, especially those living on the
streets or in homeless shelters, are at higher risk for communicable
diseases such as HIV and tuberculosis.137

Or, in the words of one commentator, “the federal government’s drug
policy with respect to federally subsidized public housing, though wellintentioned, has morphed from a means of ensuring resident safety into a
disturbingly effective revolving door in which the poor and
underrepresented are fast-tracked into homelessness.”138
In addition to exposure to the elements and to disease, those who
become homeless and live on the streets are vulnerable to a whole new
class of crimes—“quality of life” crimes—penalties for living “private lives
in public places,”139 such as for sleeping on park benches and in doorways
and for relieving themselves in alleyways.140 For ex-offenders saddled with
137.
NO SECOND CHANCE, supra note 132, at 1, 40-42; see also SOERING, supra note
92, at 42 (“‘All the things they need to get their life started back [are] off limits, and there’s
nothing they can do about it.’” (quoting Amy Hirsch, author and attorney with Community
Legal Service in Philadelphia)).
138.
Paul Stinson, Restoring Justice: How Congress Can Amend the One-Strike Laws
in Federally-Subsidized Public Housing to Ensure Due Process, Avoid Inequity, and
Combat Crime, 11 GEO. J. ON POVERTY L. & POL’Y 435, 435 (2004).
139.
NO SECOND CHANCE, supra note 132, at 40.
140.
See NAT’L COALITION FOR THE HOMELESS & NAT’L LAW CENTER ON
HOMELESSNESS AND POVERTY, A DREAM DENIED: THE CRIMINALIZATION OF HOMELESSNESS
IN
U.S. CITIES 8-9 (Jan. 2006), http://www.nationalhomeless.org/publications/

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the additional responsibility of parenthood, the prohibition against
receiving food stamps and accessing public housing often prevents them
from creating a suitable living environment for their children. This can
“disrupt[] a child’s education, emotional development, and sense of wellbeing.”141 Thus, this particular collateral consequence for ex-offenders is
passed on to their offspring, making it a multi-generational collateral
consequence.142
To add to their burden, ex-offenders may be stripped of their driver’s
licenses,143 regardless of whether the crimes for which they were convicted
involved a vehicle. As a result, ex-offenders may face further impediments
to employment and may be unable to participate in addiction treatment, to
obtain healthcare, or to receive an education or job training.144 Those
wishing to acquire an education145 may be barred from receiving federal
college loans and grants,146 which can greatly impede their ability to lead
mainstream lives.147
crimreport/report.pdf.
141.
NO SECOND CHANCE, supra note 132, at 41; see also Nora V. Demleitner,
“Collateral Damage”: No Re-entry for Drug Offenders, 47 VILL. L. REV. 1027, 1043 (2002)
[hereinafter Demleitner, Collateral Damage] (noting that transient living can “lead[] to
educational difficulties for the children” of ex-offenders).
142.
See Demleitner, Preventing Internal Exile, supra note 32, at 158; see also infra
note 163.
143.
Twenty-seven states suspend or revoke licenses for some or all drug offenses as a
result of federal legislation, 23 U.S.C. § 159 (1998). ROADBLOCKS TO REENTRY, supra note
118, at 17.
144.
ROADBLOCKS TO REENTRY, supra note 118, at 17; see also Finzen, supra note 67,
at 316 (stating that state laws revoking an ex-offenders driver’s license prohibit them from
“accepting any job that involves driving”).
145.
The educational level of prisoners is well below the average for the general
population. SARAH LAWRENCE ET AL., supra note 30, at 3 (“It is well documented that the
education level, work experience, and skills of prisoners are well below the averages for the
general population.”); Uggen & Staff, supra note 128, at 2 (“[E]x-offenders generally
reenter the labor market with low education and limited work experience.”).
146.
Students convicted of drug-related offenses are ineligible for any grant, loan or
work assistance. Higher Education Act of 1998, 20 U.S.C. § 1091(r)(1) (2004). Federal or
state inmates are also denied Pell grants, id. at § 1070a(b)(8), a ban that was intended to
target “students who committed drug crimes while receiving federal loans.” Editorial, Oiling
the Revolving Door, N.Y. TIMES, Mar. 30, 2004, at A22. For a discussion of barriers to
federal assistance for higher education, see Finzen, supra note 67, at 318-19.
147.
Editorial, Cutting College Aid, and Fostering Crime, N.Y. TIMES, July 20, 2005,
at A22 (calling the denial of federal education aid to ex-offenders a way to “lock[] [them]
out of the new economy”); Herbert, supra note 119 (“Among the most obvious and
immediate effects of [the] disconnect from both educational experience and the labor market
are increased rates of crime, drug use and gang membership.”); see generally Wacquant,
supra note 51, at 119 (describing inmates as “expelled from higher education”).

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The effect of the ban on federal financial aid has an especially
pronounced and disproportionate impact on poor and minority
communities148—communities that are already bowing under the stresses
of crime and mass incarceration of its male youth,149 and where, as one
commentator contends, “the drug trade is rampant and young men often
have run-ins with the law before they get their lives on track.”150
According to John Hagan and Ronit Dinovitzer, who study the impact of
young men’s engagement in criminal activity and subsequent involvement
in the criminal justice system, “when young minority males are taken from
their communities and imprisoned, they become a novel resource in the
investment/disinvestment equation that shifts resources from one location
to another, disadvantaging the minority community to the relative
advantage of another community, usually in a majority group setting.”151 If
enough individuals in a given community commit crimes and are
subsequently removed from the community and sent to prison, then the
community will “los[e] the workforce that is necessary to sustain viable
labor market activity.”152 To carry this progression one step further, the
community will also lose its ability to control crime through informal
means. As Susan B. Tucker and Eric Cadora of the Open Society Institute
explain “[t]he ‘coercive mobility’ of cyclical imprisonment disrupts the
fragile economic, social, and political bonds that are the basis for informal
social control in a community.”153 Similarly, Professor Todd R. Clear
writes:
[V]ery high concentrations of incarceration may well have a negative
impact on public safety by leaving communities less capable of
sustaining the informal social control that undergirds public safety. This
happens not only because incarceration, experienced at high levels, has
the inevitable result of removing valuable assets from the community,
but also because the concentration of incarceration affects the

148.
Cutting College Aid, and Fostering Crime, supra note 147 (contending that the
federal law barring ex-offenders from education aid has a disproportionate impact on
underprivileged minority communities); Diana Jean Schemo, Aid Is Focus Of Lawsuit By
Students, N.Y. TIMES, Mar. 22, 2006, at B7 (reporting the lawsuit as arguing that the ban
disproportionately affects African-Americans).
149.
See supra note 119 and accompanying text, discussing age of individuals sent to
prison.
150.
Cutting College Aid, and Fostering Crime, supra note 147.
151.
John Hagan & Ronit Dinovitzer, Collateral Consequences of Imprisonment for
Children, Communities, and Prisoners, in PRISONS 121, 133 (Michael Tonry & Joan
Petersilia eds., 1999).
152.
Id. at 135.
153.
Tucker & Cadora, supra note 60, at 3.

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community capacity of those who are left behind.154

In other words, while low levels of incarceration may well benefit a
neighborhood’s public safety, Clear contends, high levels may have the
reverse effect.155 As a result, the likelihood that the released prisoner
avoids a return to criminal activity and that the juvenile without a criminal
record steers clear of delinquency is greatly diminished.156
Certainly, one cannot attribute juvenile delinquency, recidivism, and the
loss of social control—“the capacity of a group to regulate its members
according to desired principles—to realize collective, as opposed to forced,
goals”157—solely to state and federal collateral consequences. But the
combination of some collateral consequences on certain ex-offenders may
encumber their reentry, impacting more than just those individuals and
raising the question of whether collateral consequences may endanger
rather than promote public safety.
In addition to the bans and stumbling blocks mentioned above, exoffenders may be denied the right to become foster and adoptive parents158
154.
Clear, supra note 54, at 181-82; see also WRIGHT, supra note 45, at 188 (“Where
relational structures were weak and unstable, informal [social] controls also tend to be
absent or weak, thus failing to provide for the development of necessary inhibitors to
criminality.” (citing Robert D. Crutchfield, Michael R. Geerken, & Walter R. Gove, Crime
Rate and Social Integration, 20 Criminology 467 (1982))).
155.
See Clear, supra note 54, at 183, 192-93 (“[H]igh levels of incarceration
concentrated in impoverished communities has a destabilizing effect on community life, so
that the most basic underpinnings of informal social control are damaged.”); see generally
Robert J. Sampson, Neighbourhood and Community: Collective Efficacy and Community
Safety, 11 NEW ECONOMY 106, 111 (2004), available at http://www.wjh.harvard.
edu/soc/faculty/sampson/2004.7_NewEc.pdf [hereinafter Sampson, Collective Efficacy and
Community Safety] (discussing the “profound conflict” residents face when violence rises in
their neighborhoods, wanting safe streets but objecting when the price of that safety is
having their sons “hauled off” and jailed).
156.
See generally WRIGHT, supra note 45, at 178 (“Various factors are recognized . . .
as contributing to and prompting the decision to commit a crime. Some suggest that the
choice is influenced by the behavior, opinions, and attitudes of people who are important to
the individual. . . . [A] person not exposed to such behavioral patterns will be much less
likely to choose such a lifestyle.”); sources cited supra note 128, and infra note 387.
157.
Robert J. Sampson, Stephen W. Raudenbush & Felton Earls, Neighborhoods and
Violent Crime: A Multilevel Study of Collective Efficacy, 277 Science 918, 918 (1997).
158.
Adoption and Safe Families Act (AFSA) of 1997, 42 U.S.C. § 671(a)(20)(A)
(2000) (denying foster or adoptive parenthood to individuals with a felony conviction
crimes against children or enumerated violent crimes such as rape, and denying foster or
adoptive parenthood to those with a felony conviction for physical assault, battery, or a
drug-related offense within the past five years); see also Brisman, Double Whammy, supra
note 90, at 426-27 n.27 and accompanying text.
One commentator believes restrictions on adoption and foster care should be
viewed differently than other collateral consequences, as the goal of such restrictions “lies

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and may be banned from serving on juries159 as well as prohibited from
voting,160 which this Article will explore in greater detail in infra Part II.B.
Finally, the stigma of a criminal record, either in concert with these
collateral consequences, as in the case of employment and housing,161 or
independently from them, i.e., as simply a blemish affecting social
relations, may prove too great a burden for ex-offenders trying to live
crime-free.162
While the severity and broad impact of the collateral consequences of
conviction and imprisonment is troubling, what renders them significantly
more unfair163 is that criminal defendants are usually unaware of the
outside the criminal justice system and, thus, does not aim to punish or deter ex-offenders.”
Demleitner, Collateral Damage, supra note 141, at 1045.
159.
28 U.S.C. § 1865(b)(5) (2000) (barring from service on grand and petit juries in
district court any individual who has a pending charge or conviction (and has not had his
civil rights restored) for a crime punishable by more than one year’s imprisonment).
160.
See Brisman, Double Whammy, supra note 90, at 426 n.26 and accompanying
text; ROADBLOCKS TO REENTRY, supra note 118, at 14 (reporting on the different types of
restrictions that states impose on the right to vote for people with felony convictions); LOVE,
supra note 101, at 6-7 (summarizing voting restrictions on people with felony convictions).
161.
See sources cited supra note 132. The federal government will award public
housing agencies points under the Public Housing Assessment System if they adopt policies
to evict individuals who engage in activity considered detrimental to the public housing
community. 24 C.F.R. § 966.4(1)(5)(vii). This system makes sense in theory because “it is
designed to ensure safety of public housing tenants by empowering officials to remove a
current threat.” Anthony C. Thompson, Hidden Obstacles to Reentry, supra note 61, at 278.
In practice, however, officials have imposed this mandate on persons representing no
danger, but “happen to have criminal histories.” Id.
162.
For a general discussion of stigmatization as a barrier to reintegration, see
Brisman, Double Whammy, supra note 90, at 436 n.69 and accompanying text; H.S.
BECKER, OUTSIDERS: STUDIES IN THE SOCIOLOGY OF DEVIANCE (1963); Roger Boshier and
Derek Johnson, Does Conviction Affect Employment Opportunities?, 14 BRIT. J. OF
CRIMINOLOGY 264 (1974); Wouter Buikhuisen and Fokke P.H. Dijksterhuis, Delinquency
and Stigmatisation, 11 BRIT. J. OF CRIMINOLOGY 185 (1971))); JOHN BRAITHWAITE, CRIME,
SHAME, AND REINTEGRATION (1989). See also Pager, Double Jeopardy, supra note 61, at
620-21 (“Individuals are routinely–and legally–denied access to jobs, housing, educational
loans, welfare benefits, political participation, and other key social goods solely on the basis
of their criminal background” and explaining further that “[n]egative credentials represent
those official markers that restrict access and opportunity rather than enabling them,” of
which, a criminal record is “the archetypal example”).
163.
Federal law provides for the termination of tenancy for “any criminal activity that
threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants
or any drug-related criminal activity on or off such premises, engaged in by a public housing
tenant, any member of the tenant’s household, or any guest or other person under the
tenant’s control,” 42 U.S.C. § 1437d(l)(6) (2000). As a result, the entire family of the
offender–parents, grandparents, spouse and children–may be removed from public housing
as a result of a guilty plea. See Dep’t. of Hous. & Urban Dev. v. Rucker, 535 U.S. 125

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collateral cost of a guilty plea and are rarely informed of the civil
disabilities that append to a criminal conviction—so much so that collateral
consequences have been labeled “secret sentences”164 or “invisible
punishments.”165 The ignorance on the part of criminal defendants and the
failure of defense attorneys and judges to educate defendants about these
“extra sanctions” may be due, in part, to the fact that collateral
consequences are not statutorily organized—they are scattered throughout
federal and state statutes as well as numerous regulations, making a
comprehensive list virtually impossible.166 In addition, defense attorneys
are not legally obligated to advise their clients about the various collateral
consequences attending their convictions.167 Trial courts also have no legal
obligation to impart to the defendant such information during the pleabargaining or sentencing phase.168 But given that federal prosecutors
possess an affirmative obligation, under the National Voter Registration

(2002) (upholding evictions from public housing based on the drug activity of any visitor);
Truman, supra note 109, at 1757-61 (discussing the impact of the collateral consequences of
eviction from public housing on “innocent third parties”).
164.
Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the
Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 700 (2002).
165.
Travis, supra note 59, at 16.
166.
Finzen, supra note 67, at 306 (“[It becomes] extremely difficult for an individual
to know which or how many collateral consequences laws apply in any given situation, and
even harder for that individual to find those laws if he or she goes looking for them.”). See
also Demleitner, Collateral Damage, supra note 141, at 1032 (“[O]f some consequences,
even judges, prosecutors and criminal defense attorneys are unaware.”); Anthony C.
Thompson, Hidden Obstacles to Reentry, supra note 61, at 273 (“The diverse areas in which
these [collateral] sanctions surface make them difficult to know completely and to resolve in
a single forum.”). Some judges and experts argue there are “too many possible collateral
consequences” for judges to foresee and warn a criminal defendant of them all. Truman,
supra note 109, at 1768. But see Travis, supra note 59, at 34 (“One need not recite in open
court all collateral sentences–that would be impossible. Yet, judges could be required to ask
a defendant whether his counsel has explained to him that there are collateral consequences,
and perhaps list some that might be pertinent to the defendant’s situation.” (citing State v.
Berkley, 724 A.2d 558 (Del. 1999) (barring the enforcement of a state law that required a
convicted person to surrender his driver’s license in situations where the offender did not
know it was a consequence of a guilty plea)).
167.
Finzen, supra note 67, at 306 (“[M]any attorneys do not know of all the collateral
consequences that exist and are currently under no affirmative obligation to inform their
clients about them when a client is deciding whether to plead guilty or go to trial.”).
168.
Pinard, supra note 30, at 1079; see also United States v. Campbell, 778 F.2d 764,
768 (11th Cir. 1985) (holding that “actual knowledge of the collateral consequences of a
guilty plea is not a prerequisite to the entry of a knowing and intelligent plea”); Truman,
supra note 109, at 1764-66 (discussing how Rule 11 of the Federal Rules of Criminal
Procedure requires warning of direct, but not collateral, consequences of conviction before a
defendant pleads guilty).

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Act,169 to provide state election officials written notice of convictions,170 it
would hardly seem onerous to require these attorneys to inform criminal
defendants of this consequence of a guilty plea.171
Finally, it should be noted that when juveniles are tried and convicted in
adult criminal court, rather than in juvenile court, not only do they
frequently receive longer sentences172 and ones focused on punishment
rather than on rehabilitation,173 but they often suffer the same long-term
legal, political and socioeconomic consequences that the adults do.174 They
may be prohibited from certain categories of employment,175 and may be
required to report their adult conviction on job applications once they are
released from prison and old enough to seek employment.176 An adult
169.
National Voter Registration Act (Motor Voter Law) (NVRA), 42 U.S.C. §§
1973gg to 1973gg-10 (2000).
170.
42 U.S.C. § 1973gg-6(g)(1) (2000) (“On the conviction of a person of a felony in
a district court of the United States, the United States attorney shall give written notice of
the conviction to the chief State election official . . . of the State of the person’s residence.”);
see also ISPAHANI & WILLIAMS, PURGED!, supra note 42, at 5 (“The NVRA requires United
States attorneys to give written notice of federal felony convictions to chief state elections
officials.”).
171.
The National Voter Registration Act further provides that the United States
attorney shall, upon request, “provide such additional information as the United States
attorney may have concerning the offender and the offense of which the offender was
convicted.” 42 U.S.C. § 1973gg-6(g)(3) (2000). Because federal prosecutors must actually
assist State election officials in determining the effect of a conviction on an offender’s
voting qualifications, the argument that informing a criminal defendant that his guilty plea
might result in disenfranchisement carries even less weight.
172.
See, e.g., Building Blocks for Youth, Children in Adult Jails: Fact Sheet,
http://www.buildingblocksforyouth.org/issues/adultjails/factsheet.html (last visited Jan. 5,
2006) (describing research which found that youths tried in criminal court received harsher
punishment than those tried in juvenile court).
173.
PATRICIA ALLARD & MALCOLM YOUNG, COMMENTARY, PROSECUTING JUVENILES
IN ADULT COURT: PERSPECTIVES FOR POLICYMAKERS AND PRACTITIONERS 7 (2002),
http://www.sentencingproject.org/pdfs/2079.pdf (“Children in adult facilities, particularly in
jails, frequently do not receive educational or other services appropriate to their needs.”).
174.
ALLARD & YOUNG, supra note 173, at 7 (“Whether incarcerated or not, children
convicted in criminal court may suffer other long-term legal, political and socioeconomic
consequences.”); Sara Rimer, States Adjust Adult Prisons to Needs of Youth Inmates, N.Y.
TIMES, July 25, 2001, at A1 (“[U]nlike their counterparts in juvenile centers, those who go
to adult prisons acquire felony conviction records.”).
175.
ALLARD & YOUNG, supra note 173, at 7 (“[C]ertain states bar ex-offenders with
felony convictions from particular types of jobs, therefore possibly limiting future
employment opportunities for youth.”); see supra note 123-24 and accompanying text
regarding licensing restrictions.
176.
ALLARD & YOUNG, supra note 173, at 7 (explaining that when children are
convicted in adult criminal court, “[t]heir convictions become a matter of public record, and
they may be compelled to report their conviction on job applications once they are old

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conviction, rather than a juvenile one, may also result in the loss of voting
rights to the juvenile even before he or she is old enough to exercise those
rights.177
This next Section focuses on felony voting restrictions, beginning with a
snapshot of different state disenfranchisement provisions.178 Because the
history of the right to vote is rich, a lengthy chronicle is well outside the
scope of this Article. Nevertheless, a brief account, appearing in Part II.B.1,
of voting exclusions is necessary, followed by a survey of the challenges to
felon disenfranchisement laws in Part II.B.2. Part II.B.3 then delves into
the impact of disenfranchisement on elections, as well as its effect on both
offenders’ and ex-offenders’ home communities and the communities
where convicted offenders are incarcerated.
B. Land of the (Civil) Dead: The “Pandemic” of Criminal
Disenfranchisement179
“‘I feel like not a whole person in many ways. It makes me feel like
there’s a caste system and I’ve become one of the untouchables. It’s
unbelievable it could happen in America. It’s ironic they go overseas
and seek to promote democracy in other countries—force it on other
countries—but in America they deny the right to vote to so many
people.’”180
enough to seek employment”); see supra note 124-25 and accompanying text re reporting
criminal records.
177.
ABRAMSKY, supra note 37, at 206, 29-30 (“[In Mississippi,] [d]efendants as young
as sixteen are routinely prosecuted as adults, and, when convicted, deprived of the right to
vote before they are old enough ever to have exercised that right in the first place.”); see
generally Jeffrey Fagan, This Will Hurt Me More Than It Hurts You: Social and Legal
Consequences of Criminalizing Delinquency, 16 NOTRE DAME J.L. ETHICS & PUB. POL’Y 1,
37 (2002) [hereinafter Fagan, This Will Hurt Me More Than It Hurts You] (on economic
disenfranchisement as well as loss of the right to vote, serve on juries, or run for office, of a
person with an adolescent criminal conviction).
178.
As mentioned in supra Part I, this Article will not discuss state policies and
procedures regarding the compilation, verification and notification of purging individuals
from state voting rolls. See supra note 42.
179.
LAND OF THE DEAD (Universal Studios 2005). For a discussion of “civil death,”
see, e.g., Ewald, Civil Death, supra note 15, at 1049 n.13 (defining “civil death” as the loss
of all policital, civil, and legal rights); Marc Mauer, Mass Imprisonment and the
Disappearing Voters, in INVISIBLE PUNISHMENT, supra note 54, at 50, 51-52; Heumann &
Bilotta, supra note 15, at 1524. At least one commentator prefers the term “social death.”
See R.A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79
N.Y.U. L. REV. 803, 923 (2004). See also ABRAMSKY, supra note 37, at 163 (referring to a
“pandemic” of disenfranchisement).
180.
ABRAMSKY, supra note 37, at 5-6 (quoting Jamaica S., a young white woman from
Nashville, TN, who has been disenfranchised after serving a fifteen-month period of

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Although it is impossible to determine with exact certainty,
approximately five million Americans are presently or permanently
disenfranchised due to a criminal conviction181—a number that has swelled
as the number of adults under criminal justice supervision has grown.182
Many of the criminally disenfranchised committed nonviolent, non-serious
crimes and most committed crimes without any connection to the electoral
or political process.183 Of the approximately five million disenfranchised
individuals, an estimated 1.4 million are African-American men—one-third
of the total disenfranchised population and thirteen percent of the entire
African-American population.184 According to Professor Pamela S. Karlan,
probation).
181.
See FELLNER & MAUER, supra note 110. The difficulty in compiling exact data
stems from inaccurate record-keeping or misinformation. Id., at part III. “In states that
disenfranchise ex-felons, election officials do not always have ready access to felony
conviction data, and some ex-felons may vote,” while, elsewhere, ex-felons who are
permitted to vote upon release, are not necessarily informed of this right and often
incorrectly believe that they can never vote again.” Id. Jeff Manza and Christopher Uggen
argue the figure is significantly higher, since the figure does not include jail inmates serving
sentences for misdemeanor offenses and persons in pretrial detention on the day of an
election. Manza & Uggen, Punishment and Democracy, supra note 58, at 495; Uggen &
Manza, Democratic Contraction, supra note 39, at 790 (observing the lack of access to a
polling place in such cases).
182.
See Jeff Manza, Clem Brooks & Christopher Uggen, Public Attitudes Toward
Felon Disenfranchisement in the United States, 68 PUBLIC OPINION QUARTERLY 275, 276
(2004) (“Because virtually all incarcerated felons, and many nonincarcerated felons as well,
are barred from voting, the size of the disenfranchised population has grown in tandem with
the general expansion of the criminal justice system.”); Manza & Uggen, Punishment and
Democracy, supra note 58, at 491 (referring to the “extraordinary growth” of the felon
population in the last thirty years).
183.
Ewald, Civil Death, supra note 15, at 1117 (calling disenfranchisement
overinclusive, because so many crimes that cost an offender the vote have nothing to do
with elections). See Robin L. Nunn, Comment, Lock Them Up and Throw Away the Vote, 5
CHI. J. INT’L L. 763, 769 (2005); see also Angela Behrens, Note, Voting–Not Quite a
Fundamental Right? A Look at Legal and Legislative Challenges to Felon
Disenfranchisement Laws, 89 MINN. L. REV. 231, 260-61 (2004) (stating that “the total
number of election-related crimes is negligible”); Nora V. Demleitner, Continuing Payment
on One’s Debt to Society: The German Model of Felon Disenfranchisement as an
Alternative, 84 MINN. L. REV. 753, 773 (2000) (“Only a small number of all offenders are
convicted of offenses connected to election fraud.”).
184.
Marc Mauer & Meda Chesney-Lind, Introduction to INVISIBLE PUNISHMENT,
supra note 54, at 1, 4; see also Pinaire, Heumann & Bilotta, supra note 15, at 1520.
The racial impact of disenfranchisement laws is more pronounced in individual states.
Approximately twenty-five to thirty percent, double the national rate, of all AfricanAmerican men are permanently disenfranchised in Alabama, Florida, Iowa, Mississippi,
New Mexico, Virginia and Wyoming. FELLNER & MAUER, supra note 110, at part III.
Delaware, Texas, Minnesota, New Jersey, Rhode Island, and Wisconsin range from

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while American democracy has been enlarged during and because of
our wars against external enemies, it has been compromised by our war
on crime. In 1870, the Fifteenth Amendment safeguarded the
opportunity to vote of slightly less than one million black men. Today,
felon disenfranchisement statutes deny that opportunity to nearly 1.4
million black men.185

Close to 700,000 women are unable to vote and like their male
counterparts, a disproportionate number are African-American.186 The
aggregate number of disenfranchised Americans, as well as the percentage
of the total U.S. population that has lost the right to vote due to a felony
conviction, greatly outpaces that of other countries187—so much so that the
state laws that strip convicted felons of the right to vote have been labeled
“the worst in the world.”188 According to Wacquant:
[The carceral system in the United States] is not only the preeminent
institution for signifying and enforcing blackness, much as slavery was
during the first three centuries of US history. Just as bondage effected
the ‘social death’ of imported African captives and their descendents on
American soil, mass incarceration also induces the civic death of those
it ensnares by extruding them from the social compact.
....
Convicts are banned from political participation via ‘criminal
disenfranchisement’ practiced on a scale and with a vigor unimagined in
any other country.189
seventeen to twenty percent African-American male disenfranchisement. Id.
185.
Karlan, supra note 15, at 1371.
186.
THE SENTENCING PROJECT, FELONY DISENFRANCHISEMENT RATES FOR WOMEN
(Aug. 2004), http://www.sentencingproject.org/pdfs/fvr-women.pdf (demonstrating the rate
of disenfranschisement of African-American women is three times the national average for
women).
187.
See, e.g., Behrens, supra note 183, at 239-40 (“While other countries disfranchise
some people convicted of crimes, the United States easily surpasses the international norm
both in its rates and duration of disfranchisement.”); FELLNER & MAUER, supra note 110, at
part I (“No other democratic country in the world denies as many people–in absolute or
proportional terms–the right to vote because of felony convictions.”).
188.
Editorial, Denying the Vote, N.Y. TIMES, Sept. 11, 2006, at A18; Editorial, Voting
Rights Under Siege, N.Y. TIMES, Feb. 10, 2006, at A24; see also Editorial, Voting Rights,
Human Rights, N.Y. TIMES, Oct. 14, 2005, at A24 (“The United States has the worst record
in the democratic world when it comes to stripping convicted felons of the right to vote.”);
Ewald, Civil Death, supra note 15, at 1046 (“The United States is the only democracy that
indefinitely bars so many offenders from voting, and it may be the only country with such
sweeping disenfranchisement policies.”).
189.
Wacquant, supra note 51, at 119-20 (citation omitted).

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By way of comparison, seventeen countries in Europe permit all prisoners
to vote190 and twelve countries prohibit only certain prisoners from voting
(usually based on the nature of the offense and almost always pursuant to
an explicit order of the sentencing court as an additional component of the
term of incarceration);191 just twelve European countries disenfranchise all
prisoners.192 High courts in other democratic countries, such as Canada,
Israel, South Africa, as well as the European Court of Human Rights, have
rejected various policies disenfranchising prisoners on a number of
criminological, logistical, philosophical, and racial grounds,193 and a
number of international legal instruments (some of which are binding on
the United States and others of which are advisory) support either the
abolition of criminal disenfranchisement laws or significantly less
capacious prohibitions than those in the United States.194 It bears mention
190.
Austria, Albania, Croatia, Czech Republic, Denmark, Finland, Germany, Iceland,
Ireland, Lithuania, Macedonia, Montenegro, Netherlands, Serbia, Slovenia, Sweden,
Switzerland. ISPAHANI, supra note 15, at 6.
191.
Countries that allow some prisoners to vote include: Belgium, Bosnia and
Herzegovina, France, Greece, Italy, Luxembourg, Malta, Norway, Poland, Portugal, and
Romania . ISPAHANI, supra note 15, at 6-8. Disenfranchisement is uncommon, and based on
the severity of the crime and/or length of sentence. Id.
192.
Belarus, Bulgaria, Estonia, Hungary, Kosovo, Latvia, Moldova, Russia, Slovakia,
Spain, the Ukraine, and the United Kingdom. ISPAHANI, supra note 15, at 8.
For a discussion of U.S. felon disenfranchisement policies in comparison to those of other
countries, see, e.g., FELLNER & MAUER, supra note 110, at part VI (explaining the
conditions under which prisoners may vote in countries such as the Czech Republic,
Denmark, France, Israel, Kenya, the Netherlands, Norway, Peru, Poland, Romania, Sweden,
and Zimbabwe); Manza & Uggen, Punishment and Democracy, supra note 58, at 500-02 &
Table 3 (discussing international differences in criminal voting rights and noting the
numerous countries with no restrictions or selective restrictions in comparison to the smaller
number with a total ban on inmate voting and the few with post-release restrictions).
193.
See discussion infra note 336-40 and accompanying text in Part II.B; see also
ISPAHANI, supra note 15, at 8-21, 33-34 (providing an in-depth discussion of decisions
rendered by various democratic countries’ constitutional courts regarding criminal
disenfranchisement laws); Karlan, supra note 15, at 1365-67, 1370 n.155 (discussing
decisions by the South African Constitutional Court and the Supreme Court of Canada with
respect to criminal disenfranchisement); Nunn, supra note 183, at 776-81 (surveying
international decisions on offenders’ right to vote).
194.
For a summary and discussion of U.S. criminal disenfranchisement under
international human rights law, see ISPAHANI, supra note 15, at 24-25, 33-34 (discussing
international instruments protecting voting rights, and concluding that “some of the most
significant international treaty bodies have criticized blanket disfranchisement policies–in
one case, directly and specifically rejecting U.S. policies”); see also FELLNER & MAUER,
supra note 110, at part VIII (discussing Article 25 of the International Covenant on Civil
and Political Rights); Nunn, supra note 183, at 773-76 (discussing the principles for
electoral democracy under the Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms

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that recently, in July 2006, the United Nations Human Rights Committee
(the “committee”) held hearings to determine how well the United States
was complying with the International Covenant on Civil and Political
Rights (the “covenant”), which the United States ratified in 1992. In its
report based on the hearings, the committee criticized U.S. policies of
blanket criminal disenfranchisement on the grounds that such policies were
inconsistent with the covenant, disproportionately impacted minorities, and
served no rehabilitative purpose. Although the report is not legally binding
on the United States, it urged states to restore the franchise to individuals
who have served their sentences or who have been released on parole.195
As with the other collateral consequences, states vary with respect to
who may participate in the franchise,196 leading some commentators to
describe the different state disenfranchisement laws as a “bewildering
patchwork”197 or a “national crazyquilt,”198 although a “technicolored
of Racial Discrimination).
195.
See Editorial, Prisoners and Human Rights, N.Y. TIMES, July 31, 2006, at A16.
196.
The right to vote in federal elections is conferred by Article I, Section 2, of the
Constitution. U.S. CONST. art. I, § 2, cl.1 (“The House of Representatives shall be composed
of Members chosen every second Year by the People of the several States . . . .”). But the
right to vote is neither absolute, nor governed in full by the Constitution: “the States have
the power to impose voter qualifications, and to regulate access to the franchise in other
ways.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972). See also Harper v. Virginia State Bd.
of Elections, 383 U.S. 663, 665 (1966) (“[T]he right of suffrage ‘is subject to the imposition
of state standards which are not discriminatory and which do not contravene any restriction
that Congress, acting pursuant to its constitutional powers, has imposed.’” (quoting Lassiter
v. Northampton County Board of Elections, 360 U.S. 45, 51 (1959))); see generally Roger
Clegg, Who Should Vote?, 6 TEX. REV. L. & POL. 159, 160 (2001) (noting that the question
of who should be allowed to vote “is generally left to the States, except where the
Constitution itself forbids the exclusion of voters on specific grounds”);

In the past several years, Congress has considered a number of bills that would
prohibit felon disenfranchisement. See, e.g., Count Every Vote Act of 2005, S.
450, 109th Cong. § 701(d) (2005) (allowing denial of the right to vote of
individuals serving or on parole or probation for a felony offense); Voting
Restoration Act, H.R. 2830, 107th Cong. § 3(a) (2001) (allowing a state to curtail
voting rights of an individual during “any period in which the individual remains
under the custody or supervision of the State or local jurisdiction”); Civic
Participation Act of 2000, S. 2666, 106th Cong. § 4 (2000) (allowing denial of the
right to vote of an individual serving a felony sentence or on parole or probation
for a felony offense); Civic Participation and Rehabilitation Act of 1999, H.R. 906,
106th Cong. § 3 (1999) (would allow denial of the right to vote only to those
serving a felony sentence).
197.
Editorial, Why Felons Deserve the Right to Vote, N.Y. TIMES, Feb. 7, 2005, at A20
(“Some five million Americans are barred from the polls by a bewildering patchwork of
state laws that strip convicted felons of the right to vote, often temporarily, but sometimes
for life.”).
198.
FELLNER & MAUER, supra note 110, at part II; see also Ewald, Civil Death, supra

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splatter-painting” might be a more appropriate analogy.199 Essentially, state
disenfranchisement laws may be classified under five categories: 1) states
with no restriction on voting; 2) states that disenfranchise only convicted
felons who are currently incarcerated; 3) states that disenfranchise both
inmates and felons released from prison under parole supervision; 4) states
that disenfranchise inmates, parolees, and individuals sentenced to terms of
probation rather than prison; and 5) states that disenfranchise inmates,
parolees, probationers, and some or all individuals who have completed
their entire sentences.200 Thus:
1) Only Maine, Vermont and Puerto Rico permit inmates to vote;201
forty-eight states and the District of Columbia bar individuals from
voting while imprisoned for felony offenses.202
2) Thirteen states and the District of Columbia deny the right to vote
during the incarceration period, but permit those on parole and on
probation to vote.203
3) Five states prohibit voting during the prison and parole periods, but
allow it during terms of probation.204
note 15, at 1054 (“State disenfranchisement policies vary so widely that the Department of
Justice has described current law as ‘a national crazy-quilt of disqualifications and
restoration procedures.’”). For Ewald, the metaphor of a “crazy-quilt” applies not just
interstate, but intrastate: “the pieces of th[e] metaphorical crazy-quilt are not just states, but
the counties, cities, towns and parishes within them—the governments that actually run our
localized suffrage system.” EWALD, CRAZY-QUILT, supra note 15, at 8.
199.
See infra note 200 and accompanying text.
200.
In actuality, with the exception of Maine and Vermont, which permit everyone,
including prisoners, to vote, no two states are identical. Aside from the fact that states that
disenfranchise certain categories of ex-offenders differ from each other–category five–all
states with some form of criminal disenfranchisement law differ from each other. Laleh
Ispahani and Nick Williams, of the ACLU and Demos respectively, who have researched
state purge list compilation, verification, and notification, have found “inconsistent practices
both across and within states, even in states with identical disfranchisement laws.” ISPAHANI
& WILLIAMS, PURGED!, supra note 42, at 1, 3. See also id. at 15-33 (state purge summaries).
201.
ME. CONST. art. II, § 1; VT. STAT. ANN. tit. 28, § 807(a) (2000); LOVE, supra note
101, at 11.
202.
THE SENTENCING PROJECT, FELONY DISENFRANCHISEMENT LAWS IN THE UNITED
STATES (Nov. 2006), http://www.sentencingproject.org/pdfs/1046.pdf [hereinafter FELONY
DISENFRANCHISEMENT LAWS].
203.
Hawaii, Illinois, Indiana, Massachusetts, Michigan, Montana, New Hampshire,
North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, and Utah. FELONY
DISENFRANCHISEMENT LAWS, supra note 202. For recent changes to disenfranchisement
laws in some of the above-referenced states, see infra Part IV.
204.
California, Colorado, Connecticut, New York and South Dakota. FELONY
DISENFRANCHISEMENT LAWS, supra note 202. For recent changes to and litigation re

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4) Thirty states exclude those incarcerated, as well as both probationers
and parolees, from voting.205
5) Of the thirty states that disenfranchise inmates, parolees, and
probationers, twelve states also disenfranchise some or all ex-felons:
two states disenfranchise all ex-offenders—even those who have
completed their sentences;206 others disenfranchise certain categories of
ex-offenders (such as recidivists)207 or allow ex-offenders to apply for
the restoration of rights after a designated waiting period (usually twoto-five years).208

Because of the large number of states that disenfranchise offenders serving
any type of sentence—incarceration, probation, or parole—or who
disenfranchise individuals who have completed their sentences—the
overwhelming majority of disenfranchised individuals—close to threequarters of the five million—are not in prison.209

disenfranchisement laws in Connecticut and Colorado respectively, see infra Part IV.
205.
Alabama, Alaska, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Iowa,
Kansas, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Nebraska,
Nevada, New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, Tennessee,
Texas, Virginia, Washington, West Virginia, Wisconsin and Wyoming. FELONY
DISENFRANCHISEMENT LAWS, supra note 202. For recent changes to disenfranchisement
laws in some of the above-referenced states, see infra Part IV.
206.
Kentucky and Virginia. FELONY DISENFRANCHISEMENT LAWS, supra note 202. For
recent changes to disenfranchisement laws in the above-referenced states, see infra Part IV.
207.
For example, individuals convicted of a second felony in Arizona are subject to
indefinite disenfranchisement. Ewald, Civil Death, supra note 15, at 1054 n.23.
208.
Delaware and Wyoming, for example. FELONY DISENFRANCHISEMENT LAWS,
supra note 202. For recent changes to disenfranchisement laws in the above-referenced
states, see infra Part IV.
209.
Ewald, Civil Death, supra note 15, at 1054-55 (stating that almost three-quarters
of disenfranchised offenders are not in prison). Two commentators estimate that the
percentage of legally disenfranchised felons in the United States during the 2000 election
who were not in jail or prison at seventy-three percent. See Manza & Uggen, Punishment
and Democracy, supra note 58, at 495 fig. 2 and accompanying text. Many have never been
in prison at all. See, e.g., ABRAMSKY, supra note 37, at 227.

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Brief History of Voting Exclusions in the United States210

The exclusion of felons from participating in the political process has its
roots in Greece and Rome and can be traced through Medieval and
Renaissance Europe to the English colonists, who brought the concept to
North America.211 Early in the history of the United States, many
categories of individuals, aside from convicted felons, were
disenfranchised: African-Americans, Native Americans, women, those
without property, and the mentally ill.212 But over time, many of these
restrictions fell away.213 For example, the Fifteenth Amendment, noted
above, granted the right to vote regardless of race;214 the Nineteenth
Amendment provided for the right to vote regardless of sex;215 the TwentyFourth Amendment banned poll taxes;216 and the Twenty-Sixth
Amendment lowered the voting age from twenty-one to eighteen.217
While these amendments broadened the scope of the electorate, “[t]he
practice of denying convicted felons the right to vote remained largely
unquestioned until the latter half of the twentieth century.”218 Part of the

210.
For a discussion of the philosophical and ideological foundations of criminal
disenfranchisement law, see, e.g., Ewald, Civil Death, supra note 15, at 1072-95 (presenting
the liberal and republican cases for criminal disenfranchisement); Alice E. Harvey,
Comment, Ex-Felon Disenfranchisement and Its Influence on the Black Vote: The Need for
a Second Look, 142 U. PA. L. REV. 1145, 1169-73 (1994) (discussing the social
policy/theory arguments condemning the practice of felon disenfranchisement); Pinaire,
Heumann & Bilotta, supra note 15, at 1525-27, 1530-31 (discussing two basic justifications
for the disenfranchisement of felons, violation of the social contract, and the civic
republican model, which considers crime a demonstration of an inability to behave as a fit
member of the community).
211.
See, e.g., Nunn, supra note 183, at 765; Ewald, Civil Death, supra note 15, at
1059-1066 (tracing the history of felon disenfranchisement from ancient Greece and Rome
to the Renaissance to colonial America and through the Civil War).
212.
Nunn, supra note 183, at 765.
213.
Clegg, supra note 196, at 160 (noting that “the trend generally in this country has
been toward excluding fewer and fewer people from the franchise”); Ewald, Civil Death,
supra note 15, at 1045 (“In the United States, only one major restriction of the voting rights
of adult citizens survives–the disenfranchisement of criminal offenders.”); cf. Karlan, supra
note 15, at 1346 (“The history of [the] right to vote in America is one of expansion and
contraction, of punctuated equilibria, rather than gradual evolution. . . . [V]irtually every
major expansion in the right to vote [has been] connected intimately to war.”).
214.
U.S. CONST. amend XV, § 1.
215.
U.S. CONST. amend XIX.
216.
U.S. CONST. amend XXIV, § 1.
217.
U.S. CONST. amend XXVI, § 1.
218.
Developments in the Law, One Person, No Vote: The Laws of Felon
Disenfranchisement, 115 HARV. L. REV. 1939, 1939 n.2 (2002) [hereinafter One Person, No
Vote].

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reason for this denial can be attributed to the fact that during the pubescent
years of this country, “[l]osing the right to vote . . . was limited to few
crimes and imposed only by judicial mandate,”219 and that the punishment
for felonies—a category of crimes far more limited than today220—was
often death. Thus, “worrying about convicted felons’ voting rights was
almost nonsensical.”221 Later, with the addition of the Fourteenth and
Fifteenth Amendments, many states began passing laws barring larger
groups of convicted offenders from voting, primarily as a means of
blocking African-Americans’ access to the polls.222 As the political
scientist Alec C. Ewald explains, this post-Reconstruction era following the
Civil War marked the “causal nexus” between racism and criminal
disenfranchisement.223 Marc Mauer, Assistant Director of The Sentencing
Project, notes that during this period,
[t]he newly enfranchised black population in the South was quickly met
with resistance from the white establishment. In many states this took
the form of the poll tax and literacy requirements being adopted, along
with a number of states tailoring their existing disenfranchisement
policies with the specific intent of excluding black voters.224

219.
Behrens, supra note 183, at 236. For examples of the types of acts resulting in
disenfranchisement, see id. According to one commentator:

Originally, the removal of criminals from the suffrage had a visible, public
dimension; its purposes were articulated in the law; and it was a discrete element
in punishment which required the deliberation of courts to implement. . . . Modern
disenfranchisement laws–automatic, invisible in the criminal justice process,
considered ‘collateral’ rather than explicitly punitive, and applied to broad
categories of crimes with little or no common character–do not share any of these
characteristics.
Ewald, Civil Death, supra note 15, at 1062.
220.
See generally Behrens, supra note 183, at 238.
221.
One Person, No Vote, supra note 218, at 1939. For a discussion of how criminal
disenfranchisement laws, in addition to literacy and property tests, poll taxes, understanding
clauses and grandfather clauses, contributed to reducing black participation in the electoral
process, see Andrew L. Shapiro, Note, Challenging Criminal Disenfranchisement Under the
Voting Rights Act: A New Strategy, 103 YALE L.J. 537, 537-38 (1993) (“Criminal
disenfranchisement . . . was the most subtle method of excluding blacks from the
franchise.”).
222.
Behrens, supra note 183, at 246 (“The first wave of changes in felon
disenfranchisement laws occurred soon after the Civil War, . . . and much of the discourse of
the era evidences the clear and conscious intent to disfranchise minorities in this manner.”).
For a chart displaying changes in state disenfranchisement law from the 1840s-2002, see
Manza & Uggen, Punishment and Democracy, supra note 58, at 493 fig. 1.
223.
Ewald, Civil Death, supra note 15, at 1089.
224.
Mauer, Mass Imprisonment and the Disappearing Voters, supra note 179, at 51.
See also Ewald, Civil Death, supra note 15, at 1090 (“Southern whites used a variety of

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And journalist Sasha Abramsky, Senior Fellow at the public policy
organization, Demos, writes in his recent book, Conned: How Millions
Went to Prison, Lost the Vote, and Helped Send George W. Bush to the
White House:
While America’s felony disenfranchisement laws didn’t originate in the
post-Civil War South, it was in the South that the felony codes were
first dramatically expanded with the specific intent of casting a wide net
within which to snare freed blacks. It was in Dixie, in other words, that
felony codes were first politicized—used as a pragmatic tool to achieve
ends not related to the arena of criminal justice—so as to remove a
group of people from the electoral process.225

Thus, for example, in Mississippi, an 1869 constitutional provision
disenfranchised those guilty of “any crime;” the 1890 constitutional
convention narrowed the definition of “any crime” to exclude those
convicted of bribery, burglary, theft, arson, obtaining money or goods
under false pretenses, perjury, forgery, embezzlement or bigamy—crimes
for which African Americans were more likely to be convicted than
whites—but omitted robbery and murder—crimes for which whites were as
likely or more likely to be convicted than African Americans.226 Similarly,
in 1895, South Carolina disenfranchised offenders convicted of
housebreaking, receiving stolen goods, fornication, sodomy,
miscegenation, and larceny, but permitted embezzlers and murderers to
vote.227 Several states “made it an infamous crime [one which barred an
individual from the political process] to steal a pig or break into an
outhouse, but neglected to declare murder—or, for that matter, voter
fraud—infamous.”228 Bigamy and vagrancy, as well as scores of other
petty crimes, were especially popular disenfranchisable offenses in postCivil War South because of the displacement of African Americans
wrought by slavery and Reconstruction.229
Although the racist motives behind the South’s disenfranchising laws are
schemes to take voting rights away from blacks after the end of military Reconstruction–
grandfather clauses, literacy tests, poll taxes, white primaries–restrictions which effectively
gutted the Fifteenth Amendment.” (internal quotation marks omitted)).
225.
ABRAMSKY, supra note 37, at 146.
226.
Ewald, Civil Death, supra note 15, at 1091-92. For a review of Mississippi’s
constitutional and statutory disenfranchisement provisions, see McLaughlin v. City of
Canton, 947 F. Supp. 954, 969-71 (S.D. Miss. 1995).
227.
Ewald, Civil Death, supra note 15, at 1092. Between 1895 and 1902, South
Carolina, Louisiana, Alabama and Virginia all “disenfranchised criminals selectively with
the intent of disqualifying a disproportionate number of blacks.” Shapiro, supra note 221, at
541-42.
228.
ABRAMSKY, supra note 37, at 146.
229.
Ewald, Civil Death, supra note 15, at 1092.

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today well-acknowledged230 and may seem quite obvious, one
commentator, writing in the early 1990s, describes criminal
disenfranchisement as still
the most subtle method of excluding blacks from the franchise.
Narrower in scope than literacy tests or poll taxes and easier to justify
than understanding or grandfather clauses, criminal disenfranchisement
laws provided the Southern states with “insurance if courts struck down
more blatantly unconstitutional clauses.” The insurance has paid off: A
century
after
the
disenfranchising
conventions,
criminal
disenfranchisement is the only substantial voting restriction of the era
that remains in effect.231

In other words, because of the comparative subtlety of criminal
disenfranchisement laws and because of they possess some nondiscriminatory ancestry (e.g., ancient Greece and Rome, Renaissance
Europe),232 only gradually (and belatedly) did felon disenfranchisement
laws reach the judicial radar screen. 233
2.

Challenges to Felon Disenfranchisement Laws

Felon disenfranchisement laws have been challenged on a number of
grounds, most commonly as a violation of the Equal Protection Clause of
the Fourteenth Amendment and more recently as a violation of the Voting
Rights Act,234 although litigants have also relied on the Eighth
Amendment235 and state constitutional provisions in making their
230.
231.
232.
233.

See Shapiro, supra note 221, at 542.
Id. at 538 (footnote omitted).
See generally sources cited supra note 211 and accompanying text.
See Ewald, Civil Death, supra note 15, at 1065 & n.75 (noting a “long silence”
between the post-Reconstruction criminal disenfranchisement provisions and challenges to
such provisions under the Fourteenth Amendment in the 1960s).
234.
For a review of challenges to voting restrictions under the Equal Protection Clause
of the Fourteenth Amendment, see, e.g., Saxonhouse, supra note 15, at 1623-32. For a
review of challenges under the Voting Rights Act, see One Person, No Vote, supra note
218, at 1952-57; Shapiro, supra note 221, at 549-66.
235.
See, e.g., Green v. Bd. of Elections of the City of New York, 380 F.2d 445, 450
(2d Cir. 1967) (rejecting a claim based on the Eighth and Fourteenth Amendments);
Kronlund v. Honstein, 327 F. Supp. 71, 74 (N.D. Ga. 1971) (rejecting a claim based on the
Eighth, Fourteenth, and First Amendments). For claims under the Eighth Amendment, see
also Karlan, supra note 15, at 1368-71 (arguing the Supreme Court’s Eighth Amendment
jurisprudence supports the view that disenfranchisement, particularly lifetime
disqualification after completion of an individual’s sentence, is not a “constitutionally
appropriate” punishment for an offense). Mark E. Thompson, Don’t Do the Crime if You
Ever Intend to Vote Again, supra note 65 (arguing that criminal disenfranchisement is a
violation of the Eighth Amendment).

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claims.236 Only a handful of these cases have returned favorable results for
the disenfranchised challengers.237
In Richardson v. Ramirez, the first Supreme Court case to address
criminal offenders’ right to vote, three California ex-felons who had
completed their respective prison sentences and paroles, challenged a
California state law under which election officials had refused to let them
register to vote.238 The California Supreme Court concluded that the Equal
Protection Clause of the Fourteenth Amendment prohibited excluding from
the franchise convicted felons who had completed their sentences and
paroles; the Supreme Court reversed.239 Writing for the majority, thenAssociate Supreme Court Justice Rehnquist stated that Section 1’s
prohibition against state denial of equal protection of the laws240 had to be
read in conjunction with the “less familiar” Section 2 of the Fourteenth
Amendment,241 which permits states to disenfranchise those convicted of
“rebellion, or other crime” without sacrificing congressional
representation.242 The Court then reasoned that “the exclusion of felons

236.
See, e.g., Otsuka v. Hite, 414 P.2d 412, 414, 421 (1966) (holding that the
California constitutional provision denying the right to vote to any person convicted of an
“infamous” crime did not apply to Otsuka, who was convicted for refusing to serve in the
armed forces during World War II, because only crimes of “moral corruption and
dishonesty” warranted permanent disenfranchisement).
237.
See Behrens, supra note 183, at 251 & n.104 (noting the few successful challenges
to felon disenfranchisement laws).
238.
418 U.S. 24 (1974).
239.
Id. at 33-34, 55-56.
240.
Section 1 reads:

All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
U.S. CONST. amend XIV, § 1.
241.
418 U.S. at 42.
242.
Section 2 reads:
Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State,
excluding Indians not taxed. But when the right to vote at any election for the
choice of electors for President and Vice President of the United States,
Representatives in Congress, the Executive and Judicial officers of a State, or the
members of the Legislature thereof, is denied to any of the male inhabitants of
such State, being twenty-one years of age, and citizens of the United States, or in
any way abridged, except for participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the proportion which the number of such

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from the vote has an affirmative sanction in Section 2.”243
In Hunter v. Underwood, the Supreme Court considered a provision of
the Alabama Constitution of 1901 providing for the disenfranchisement of
persons convicted of “any crime . . . involving moral turpitude.”244 Justice
Rehnquist, again writing for the majority, noted that various minor nonfelony offenses, such as presenting a worthless check – the misdemeanors
for which Underwood and his co-plaintiff were convicted, fell within the
purview of the disenfranchising provision, whereas a number of more
serious non-felony crimes were not considered crimes of moral turpitude,
such as second-degree manslaughter, assault on a police officer, and
mailing pornography.245 Concluding that “its original enactment was
motivated by a desire to discriminate against blacks on account of race and
[that] the section continues to this day to have that effect,” the Court held
that the provision violated the Fourteenth Amendment.246
Although technically a victory for opponents of felon
disenfranchisement laws, Hunter affirmed the conclusion in Richardson
that Section 2 grants “implicit authorization” to states to disenfranchise
offenders,247 limiting its holding to the somewhat insipid declaration that
Section 2 “was not designed to permit the purposeful racial
discrimination . . . which otherwise violates § 1 of the Fourteenth
Amendment.”248 As a result, Richardson “is generally recognized as
having closed the door on the equal protection argument in a challenge to
state statutory voting disqualifications for conviction of crime.”249
Similarly, many commentators regard the decision as having “placed a
significant hurdle in front of subsequent legal challenges” to criminal
disenfranchisement under the Fourteenth Amendment,250 and as having

male citizens shall bear to the whole number of male citizens twenty-one years of
age in such State.
U.S. CONST. amend XIV, § 2. The Twenty-Sixth Amendment changed the voting age from
twenty-one to eighteen. U.S. CONST. amend XXVI, § 1.
243.
418 U.S. at 54.
244.
471 U.S. 222-23 (1985) (quoting ALA. CONST., art. VIII, § 182, repealed by ALA.
CONST. amend. 579).
245.
Id. at 226-27.
246.
Id. at 233.
247.
Id.
248.
Id.
249.
Allen v. Ellisor, 664 F.2d 391, 395 (4th Cir. 1981).
250.
Ewald, Civil Death, supra note 15, at 1066. See also Mark E. Thompson, Don’t
Do the Crime if You Ever Intend to Vote Again, supra note 65, at 184 (“[Richardson v.
Ramirez] virtually foreclosed a challenge of disenfranchisement under the most logical and
able avenue of attack–equal protection.”).

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effectively rendered Section 2 a “dead letter.”251
Two other equal protection cases merit mention at this juncture. In
Hobson v. Pow,252 the United States District Court for the Northern District
of Alabama considered the claims of a class of men who had been
disenfranchised under the Alabama Constitution for “assault and battery on
the wife.”253 The State Constitution did not contain a similar provision for
women who are convicted of assault and battery against their husbands.254
After emphasizing that the case did not involve the issue of “whether a
State may constitutionally exclude some or all convicted felons from the
franchise,”255 the District Court held unconstitutional the “assault and
battery on the wife” clause of the Alabama Constitution because it treated
one sex differently from the other.256
In McLaughlin v. City of Canton,257 the United States District Court for
the Southern District of Mississippi applied the strict scrutiny standard of
Dunn v. Blumstein,258 rather than the rational basis standard of Richardson,
to conclude that Mississippi had not provided a “substantial and compelling
reason” for its disenfranchisement of the plaintiff for a misdemeanor false
pretenses conviction under Section 241 of the Mississippi Constitution.259
Section 241 denies the right of suffrage to anyone who has been “convicted
of murder, rape, bribery, theft, arson, obtaining money or goods under false
pretense, perjury, forgery, embezzlement or bigamy.”260 Although the
District Court found that the plaintiff’s equal protection rights were
violated, it stopped short of holding that Section 241—the section under
which plaintiff had originally been disenfranchised—was enacted with the
discriminatory purpose of disenfranchising Mississippi’s African American
population.261

251.
Ewald, Civil Death, supra note 15, at 1070. For additional criticism of Richardson
v. Ramirez, see, e.g., Behrens, supra note 183, at 255-58; Shapiro, supra note 221, at 54547.
252.
434 F. Supp. 362 (N.D. Ala. 1977).
253.
Id. at 364 (quoting ALA. CONST., art. VIII, § 182, repealed by ALA. CONST.
amend. 579).
254.
Id. at 366.
255.
Id. at 366-67 (quoting Richardson v. Ramirez, 418 U.S. 24, 53 (1974)).
256.
Id. at 367. See also Ewald, Civil Death, supra note 15, at 1093 n.198 (contending
that the district court struck down Alabama’s constitutional provision disenfranchising those
convicted of wife-beating “not because of the racist intent of the provision,” but due to
gender).
257.
947 F. Supp. 954 (S.D. Miss. 1995).
258.
Id. at 976 (citing Dunn v. Blumstein, 405 U.S. 330, 342-43 (1972)).
259.
Id. at 976.
260.
MISS. CONST. art. XII, § 241.
261.
947 F. Supp. at 978.

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Although both Hobson and McLaughlin, like Hunter, resulted in victory
for the disenfranchised offender-plaintiffs, their place in criminal
disenfranchisement jurisprudence is moderated by the reaffirmation of
Richardson, in the case of Hunter, and the reluctance to address the racial
animus of the Alabama and Mississippi state constitutions in Hobson and
McLauglin respectively. Perhaps because of these limited gains via the
equal protection route, disenfranchised litigants have turned to challenges
under the Voting Rights Act (the “Act”).262
Passed by Congress in 1965 with the intention of “buttress[ing] the
Fifteenth Amendment”263 and “rid[ding] the country of racial
discrimination in voting,”264 the Voting Rights Act prohibits any voting
law or scheme that results in minority groups having less of an opportunity
to participate in the electoral process than other groups.265 Over the years,
it has been amended numerous times266—often in response to court
decisions denying or diluting the minority vote.267 For example, in City of
Mobile v. Bolden, the Supreme Court held that a plaintiff must provide
proof of discriminatory intent to show a violation of the Voting Rights
Act.268 Congress responded by amending the Act in 1982 with a “results
test” that lifted the plaintiffs’ responsibility of demonstrating
discriminatory intent.269 In its current form, Section 2 provides:
(a) No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State or
political subdivision in a manner which results in a denial or
262.
263.

Voting Rights Act of 1965, 42 U.S.C. § 1973 (2000).
Shapiro, supra note 221, at 549; see also Newman, supra note 49, at 532
(“Congress enacted the [Voting Rights Act] . . . to address in practice what the Fifteenth
Amendment already addressed in theory.”).
264.
South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966).
265.
42 U.S.C. § 1973; see generally Manza, Brooks & Uggen, supra note 182, at 275
(“Since passage of the Voting Rights Act of 1965, debates about suffrage in the United
States have largely shifted from questions about formal individual rights to participation to
questions of fairness in the policy implementation of those rights.”).
266.
See infra notes 267-69. In 1970, Congress reauthorized the Act for five more
years and for an additional seven years in 1975. Rick Lyman, Extension of Voting Act is
Likely Despite Criticism, N.Y. TIMES, March 29, 2006, at A14. Section 203 was added in
1975, requiring language assistance to encourage voting by citizens with limited English
abilities. In 1982, portions of the Act were reauthorized for another twenty-five years. Id.
The House and Senate approved renewal of the Act in July 2006. See Carl Hulse, By a Vote
of 98-0, Senate Approves 25-Year Extension of Voting Rights Act, N.Y. TIMES, July 21,
2006, at A16.
267.
For a discussion of vote denial and vote dilution claims under the Voting Rights
Act, see Shapiro, supra note 221, at 553-60.
268.
446 U.S. 55, 62-64 (1980).
269.
See Thornburg v. Gingles, 478 U.S. 30, 43-44 (1986).

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abridgement of the right of any citizen of the United States to vote on
account of race or color . . . .
(b) A violation of subsection (a) of this section is established if, based
on the totality of circumstances, it is shown that the political processes
leading to nomination or election in the State or political subdivision are
not equally open to participation by members of a class of citizens
protected by subsection (a) of this section in that its members have less
opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice. . . .270

In Wesley v. Collins, the first federal case challenging criminal
disenfranchisement under the Voting Rights Act, plaintiffs alleged that
Tennessee’s disenfranchisement statute violated Section 2.271 Presenting
statistical evidence of the disproportionate representation of African
Americans in the Tennessee criminal justice system, the plaintiffs argued
that the disenfranchisement statute would “progressively dilute the black
vote thereby impeding the equal opportunity of blacks to participate in the
political process and to elect candidates of their choice.”272 The United
States District Court for the Middle District of Tennessee was not
persuaded. Reasoning that “[t]he underlying premise of the result test’s
‘totality of the circumstances’ analysis is that a causal connection must be
established between the indicia of historically-rooted discrimination and
the Tennessee statute disenfranchising felons,”273 the District Court found
that “the nexus between discriminatory exclusion of blacks from the
political process and disenfranchisement of felons simply cannot be
drawn.”274 Holding that the Act did not require invalidation of Tennessee’s
disenfranchisement statute, the District Court dismissed the plaintiffs’
complaint:
the operation of the challenged provision of the Tennessee Voting
270.

42 U.S.C. § 1973 (2000). As one commentator explains:

Recognizing that the intent standard used in American constitutional claims was
virtually impossible to satisfy for plaintiffs in voting rights cases, the United
States Congress formally enacted a results test where plaintiffs do not need to
demonstrate that the challenged election law was designed for a discriminatory
purpose. Under the results test, an election law violates the Voting Rights Act if
under the ‘totality of the circumstances,’ the law results in a protected minority
group having less opportunity to participate in the political process.
Nunn, supra note 183, at 772.
271.
605 F. Supp. 802, 803-04 (M.D. Tenn. 1985).
272.
Id. at 804.
273.
Id. at 812.
274.
Id.

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Rights Act does not deny any citizen, ab initio, the equal opportunity to
participate in the political process and to elect candidates of their
choice. Rather, it is the commission of preascertained, proscribed acts
that warrant the state to extinguish certain individuals’ rights to exercise
their opportunity to participate.
Felons are not disenfranchised based on any immutable characteristic,
such as race, but on their conscious decision to commit an act for which
they assume the risks of detection and punishment.275

On appeal, the Sixth Circuit adopted much of the District Court’s reasoning
and affirmed.276
Since Wesley, courts and commentators have debated whether Congress
intended the Voting Rights Act to apply to criminal disenfranchisement
laws,277 and, if so, whether Congress possesses the authority to do so.278 In
Baker v. Pataki, the Second Circuit divided evenly (5-5) over whether the
“results” test of Section 2 of the Voting Rights Act could be applied to
New York’s felon disenfranchisement statute.279 Because the Second
Circuit split evenly on its disposition, the opinions in Baker had no
precedential effect on Muntaqim v. Coombe,280 where the Second Circuit
275.
276.
277.

Id. at 813.
Wesley v. Collins, 791 F.2d 1255, 1262 (6th Cir. 1986).
Compare Newman, supra note 49, at 562-63 (arguing that Congress did not intend
for Section 2 of the Voting Rights Act to apply to state felon disenfranchisement laws), and
One Person, No Vote, supra note 218, at 1954-57 (noting that the Supreme Court has
narrowed Congressional enforcement power and encouraging litigants to “instead focus on
legislative amendments to combat the disproportionate effects of felon
disenfranchisement”), with Shapiro, supra note 221, at 553 (acknowledging that “[t]he
sponsors of the 1982 amendment to the Voting Rights Act may not have foreseen challenges
to criminal disenfranchisement based on the results test in section 2 of the Act,” but
asserting that “the results test was meant to apply to all conceivable voting regulations
including, of course, absolute disqualification from the electorate”).
278.
Newman, supra note 49, at 539 (discussing whether the Voting Rights Act is a
“congruent and proportional” remedy to the constitutional problem of state criminal
disenfranchisement laws).
279.
Judge Mahoney, relying on the legislative history of the Voting Rights Act, wrote
for five judges that felon disenfranchisement laws are not covered by the Act, and that
subjecting such disenfranchisement laws to analysis under the Act would alter the balance
between the States and the Federal Government. 85 F.3d 919, 921-22 (2d Cir. 1996). Judge
Feinberg and four other judges reached the opposite conclusion, contending that the
Fourteenth and Fifteenth Amendments were designed to disrupt the constitutional balance,
that any legislation passed pursuant to those amendments would subsequently also disrupt
the balance, and that the Voting Rights Act applies to “any citizen,” including felons. Id. at
938, 940.
280.
Muntaqim v. Coombe (Muntaqim II), 366 F.3d 102, 107-08 (2d Cir. 2004).
Because the judges were evenly divided on Baker, the result was to uphold the decision of

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was again asked to address whether the Voting Rights Act is applicable to
the New York State statute that disenfranchises currently incarcerated
felons and parolees.281 In Muntaqim I, an unpublished opinion, the United
States District Court for the Northern District of New York concluded that
the Voting Rights Act was inapplicable to New York’s felon
disenfranchisement statute and subsequently dismissed the pro se
complaint of the plaintiff, a convicted felon serving a life sentence of
imprisonment.282 Agreeing with the District Court, the Second Circuit, in
Muntaqim II, concluded that because the Act was silent on the topic of state
felon disenfranchisement statutes, it could not be used to question the
validity of New York’s disenfranchisement statute.283 The Supreme Court
denied plaintiff’s petition for writ of certiorari,284 but the Second Circuit
agreed to hear the case en banc.285
In May 2006, the Second Circuit consolidated Muntaqim with Hayden v.
Pataki, which had raised substantially similar claims.286 The Second
Circuit then de-consolidated the Muntaqim and Hayden cases for the
purposes of dismissing Muntaqim for lack of standing287 and concluded
that New York State’s disenfranchisement of currently imprisoned felons
and parolees did not constitute unlawful vote denial in violation of Section
2.288 The Second Circuit did, however, remand Hayden to the District
Court to determine whether New York’s apportionment process “which
counts incarcerated prisoners as residents of the communities in which they
are incarcerated . . . has the alleged effect of increasing upstate New
York regions’ populations at the expense of New York City’s,”289 resulting
in the dilution of the voting power of minority groups in urban districts—
an issue that this Article will address in infra Part II.B.3.b.
Other jurisdictions have reached conflicting results, with no apparent
resolution in sight.290 In Farrakhan v. Washington (Farrakhan III),291 the
the district court, which had dismissed the plaintiffs’ claims under Fed.R.Civ.P. 12(b)(6).
See Baker, 85 F.3d at 920.
281.
Muntaqim II, at 103-04.
282.
Id. at 104.
283.
Id.
284.
Muntaqim v. Coombe (Muntaqim III), 543 U.S. 978 (2004).
285.
Muntaqim v. Coombe (Muntaqim IV), 396 F.3d 95 (2d Cir. 2004). The Second
Circuit heard the case in June 2005. Muntaqim v. Coombe, 449 F.3d 371 (2d Cir. 2006) (en
banc).
286.
Hayden v. Pataki, 449 F.3d 305, 309 (2d Cir. 2006).
287.
Id. at 309-10.
288.
Id. at 329.
289.
Id. at 328-29, 371.
290.
See Linda Greenhouse, Burden of Proof Now on Parents in School Cases, N.Y.
TIMES, Nov. 15, 2005, at A1 (discussing the Supreme Court’s most recent rejection of a

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Ninth Circuit reasoned that although Congress did not specifically delineate
racial bias in the criminal justice system as a relevant factor in identifying a
violation under Section 2,292 Congress did not intend to exclude such bias
from the “totality of the circumstances” analysis.293 Concluding that the
“causal connection” standard does not require the plaintiffs to show that
racial bias “by itself” caused the discriminatory result—something that
would effectively read the intent requirement back into the Voting Rights
Act and something that Congress wished to eliminate in 1982—the Ninth
Circuit remanded the case to determine whether, under the totality of the
circumstances, Washington state’s felon disenfranchisement scheme
constitutes improper race-based vote denial in violation of Section 2 of the
Voting Rights Act.294 Both defendants’ petition for panel rehearing and
petition for rehearing en banc were denied by the Ninth Circuit (Farrakhan
IV),295 as was the petition for writ of certiorari to the United States
Supreme Court.296 On July 7, 2006, the United States District Court for the
Eastern District of Washington granted summary judgment in favor of the
State of Washington.297 Finding that although “there is discrimination in
Washington’s criminal justice system on account of race,”298 and that this
discrimination “interacts with its felon disenfranchisement law in a
meaningful way,”299 “‘clearly hinder[ing] the ability of racial minorities to

petition to hear a felon disenfranchisement claim under the Voting Rights Act); Newman,
supra note 49, at 529 (noting that none of the current cases challenging state felon
disenfranchisement statutes under the Voting Rights Act have gone to trial).
291.
Farrakhan v. Washington (Farrakhan III), 338 F.3d 1009 (9th Cir. 2003). For an
overview of the Farrakhan litigation, see ABRAMSKY, supra note 37, at 35-36.
292.
Farrakhan III, 338 F.3d at 1015 (listing the “typical factors” in the Senate Report
that may be relevant in analyzing a Section 2 violation).
293.
Id. at 1020. In Farrakhan I, the United States District Court for the Eastern
District of Washington concluded that the Voting Rights Act could apply to felon
disenfranchisement laws and rejected the defendants’ motion to dismiss. Farrakhan v. Locke
(Farrakhan I), 987 F. Supp. 1304 (E.D. Wash. 1997). But in Farrakhan II, the same District
Court granted the defendants’ motion for summary judgment, finding that although the state
of Washington disenfranchises a disproportionate number of minorities, the cause is
“external” to the voting qualifications and that plaintiff failed to show a causal connection
between the challenged voting scheme and the discriminatory result. Farrakhan v. Locke
(Farrakhan II), No. CS-96-76-RHW, 2000 U.S. Dist. LEXIS 22212, *3 (E.D. Wash. Dec. 1,
2000).
294.
Farrakhan III, 338 F.3d at 1020.
295.
Farrakhan v. Washington (Farrakhan IV), 359 F.3d 1116 (9th Cir. 2004).
296.
Locke v. Farrakhan, 543 U.S. 984 (2004).
297.
Farrakhan v. Gregoire (Farrakahn V), No. CV-96-076-RHW, 2006 U.S. Dist.
LEXIS 45987, at *2 (E.D. Wash. July 7, 2006).
298.
Id. at *18.
299.
Id. at *20.

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participate effectively in the political process, as disenfranchisement is
automatic,’”300 the District Court nevertheless determined that there was no
“history of official discrimination” in the state301 and that the Plaintiffs had
failed to show, under the totality of the circumstances, a violation of
Section 2.302 The District Court concluded that Washington’s felon
disenfranchisement law did not result in racial discrimination in the state’s
electoral process, observing that factors such as the lack of history of racial
bias in Washington’s electoral process, as well as in the state’s decision to
adopt felon disenfranchisement provisions, balance against “the
contemporary discriminatory effects that result from the day-to-day
functioning of Washington’s criminal justice system.”303
Reaching a different result than the Ninth Circuit in Farrakhan III, an en
banc panel of the Eleventh Circuit held in Johnson v. Governor of Fla.
(Johnson IV) that Florida’s state felon disenfranchisement law could not be
challenged under the Voting Rights Act.304 Similarly, the Fourth Circuit, in
an unpublished opinion, affirmed a District Court’s dismissal of a challenge
to Virginia’s disenfranchisement based on the Act, concluding that under
the Act, a plaintiff must establish that a state intended to, or its scheme had
the effect of, abridging or denying the right to vote based on race.305
Because Virginia’s disenfranchisement of felons pre-dated the inclusion of
African-Americans in the franchise, and because the plaintiff had failed to
plead a nexus between the exclusion of felons and race, the Fourth Circuit,
citing Wesley, concluded that the District Court had properly dismissed the
plaintiff’s claim.306

300.
301.
302.
303.
304.

Id. at *18 (quoting Farrakhan I, 338 F.3d at 1020).
Id. at *20.
Id. at *26, *28-29.
Id. at *29.
405 F.3d 1214, 1234-35 (11th Cir. 2005) (en banc), cert. denied, Johnson v. Bush,
126 S.Ct. 650, 651 (2005). In Johnson I, the District Court for the Southern District of
Florida found that “it [wa]s not racial discrimination that deprive[d] felons, black or white,
of their right to vote but their own decision to commit an act for which they assume[d] the
risks of detection and punishment,” and granted the defendant’s motion to dismiss. Johnson
v. Bush (Johnson I), 214 F. Supp. 2d 1333, 1341, 1343-44 (S.D. Fla. 2002). The Eleventh
Circuit reversed the District Court, noting the decision of the Ninth Circuit in Farrakhan III
and concluding that the interaction of racial bias in the criminal justice system and voter
disqualifications may create the type of obstacles to political participation on account of
race that Section 2 prohibits. Johnson v. Governor of Fla. (Johnson II), 353 F.3d 1287,
1305-06 (11th Cir. 2003). The Eleventh Circuit then granted a rehearing. Johnson v.
Governor of Fla. (Johnson III), 377 F.3d 1163, 1164 (11th Cir. 2004) (en banc).
305.
Howard v. Gilmore, 205 F.3d 1333 (4th Cir. 2000) (table), 2000 U.S. App. LEXIS
7816, *1 (per curiam) (unpublished).
306.
Id.

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Impact of Criminal Disenfranchisement Laws

In Washington v. State,307 one of the earliest cases addressing the
question of criminal disenfranchisement, the Supreme Court of Alabama
reasoned:
It is quite common . . . to deny the right of suffrage, in the various
American States, to such as have been convicted of infamous crimes.
The manifest purpose is to preserve the purity of the ballot box, which
is the only sure foundation of republican liberty, and which needs
protection against the invasion of corruption, just as much as against
that of ignorance, incapacity, or tyranny. The evil infection of the one is
not more fatal than that of the other. The presumption is, that one
rendered infamous by conviction of felony, or other base offense
indicative of great moral turpitude, is unfit to exercise the privilege of
suffrage, or to hold office, upon terms of equality with freemen who are
clothed by the State with the toga of political citizenship. It is proper,
therefore, that this class should be denied a right, the exercise of which
might sometimes hazard the welfare of communities, if not that of the
State itself, at least in close political contests. The exclusion must for
this reason be adjudged a mere disqualification, imposed for protection,
and not for punishment—withholding an honorable privilege, and not
denying a personal right or attribute of personal liberty.308

Although the United States Supreme Court has since made clear that
“fencing out” a segment of the population because of the way it votes or
may vote is unconstitutional,309 much of the rationale set forth in
Washington underlies contemporary justifications for disenfranchisement.
Thus, exclusion continues to be defended as a way to protect the “purity of
the ballot box,”310 as a means of safeguarding a state’s interests or
shielding a state from anti-democratic subversive voters,311 as a method of
307.
308.
309.

75 Ala. 582 (1884).
Id.
Carrington v. Rash, 380 U.S. 89, 94 (1965); see also Cipriano v. City of Houma,
395 U.S. 701, 705 (1969) (holding that “differences of opinion cannot justify excluding” a
group of individuals from the franchise).
310.
See, e.g., Demleitner, Preventing Internal Exile, supra note 32, at 157
(“Justifications for this exclusion have changed over time, but today many states defend the
disenfranchisement of ex-offenders with a ‘purity of the ballot box’ argument.”); Behrens,
supra note 183, at 261-63 (dissecting the argument’s flaws).
311.
See, e.g., Behrens, supra note 183, at 263-65 (discussing how felon
disenfranchisement laws have been defended as a way to protect a state’s interests); Clegg,
supra note 196, at 172, 177 (calling voting a “privilege” reserved for “trustworthy, good
citizens,” and arguing that “[i]f these laws did not exist there would be a real danger of
creating an anti-law enforcement voting bloc in municipal elections, which is hardly in the
interests of a neighborhood’s law-abiding citizens”). As Behrens notes, however, an

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preventing election fraud312 (despite evidence that voting fraud is rare313),
and as a general deterrent—a mode of deterring future crime314 (despite the
fact that criminal disenfranchisement is hardly a known collateral
consequence in this country315).
In Part I, this Article noted how voting has been considered “a
cornerstone of democratic governance and a fundamental element of
citizenship in democratic societies.”316 While there are certainly some exoffenders who place little value on the right to vote,317 to many, voting is
argument based on an “assumption that commission of a crime indicates a desire to subvert
the state is flawed,” because “[a] felony conviction is not dispositive of one’s political
views.” Behrens, supra note 183, at 263. The likelihood that an individual will vote a “procrime” ticket is unlikely. Id.
312.
See, e.g.,
Behrens, supra note 183, at 260-61 (discussing how felon
disenfranchisement laws have been defended as a way to prevent election fraud and arguing
that “[p]revious commission of a felony does not logically lead to future commission of
electoral fraud, nor does previous non-commission of a felony rule out the possibility of
future electoral fraud”); cf. Clegg, supra note 196, at 163 (reasoning that “the easier it is to
register to vote, the greater the possibility of fraud”).
313.
See Mark E. Thompson, Don’t Do the Crime if You Ever Intend to Vote Again,
supra note 65, at 190-94 (“Another reason disenfranchisement is not necessary to protect
against voter fraud is the sheer number of laws that the states have at their disposal to
combat voter misconduct. . . . possession of the right to vote is not required to commit the
majority of election offenses.”).
314.
See, e.g., Behrens, supra note 183, at 265-66 (discussing how felon
disenfranchisement laws have been defended as a method of deterring future crime and
noting that “[t]he claimed deterrent effect of disfranchisement hinged primarily on the
public nature of the loss of rights,” which no longer exists today); cf. Clegg, supra note 196,
at 177 (“[C]onsider that not allowing criminals to vote is one form of punishment and a
method of stigmatization that tells criminals that committing a serious crime puts them
outside the circle of responsible citizens.”).
315.
See sources cited supra notes 166-68 in Part II.A and accompanying text. See also
Demleitner, Preventing Internal Exile, supra note 32, at 161, 160 (“[T]he relatively low
visibility of collateral consequences makes them unlikely deterrents to crime.”). In contrast,
most European countries that do bar some prisoners from voting “make clear that the
disqualification is, in fact, designed and delivered as a form of punishment,” one “publicly
imposed” by a judge, “based on the nature of the offense and the offender.” ISPAHANI, supra
note 15, at 5.
316.
See Uggen & Manza, Democratic Contraction, supra note 39, at 777.
317.
See, e.g., ABRAMSKY, supra note 37, at 134 (“‘Voting rights is the least of those
rights they are concerned about for reinstatement.’” (quoting Republican Lance Horbach,
chair of the Justice Systems Committee in the Iowa House)); see also id. at 115-16 (“‘The
younger people don’t vote–many of them because they’re on parole or probation or have
been told doing time disenfranchises them and they don’t make the effort to find out
otherwise.’” (quoting Henry Rodriguez, a Latino organizer in Texas, who had served time in
prison for the murder of a white supremacist back in the 1970s before ultimately being
pardoned.).

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“the coin of the realm.”318 As David Sadler, one-time drug felon and
current voting rights activist in Alabama, explains:
Before I realized I was disenfranchised . . . I didn’t vote because I didn’t
think it mattered. Once I knew it was taken away from me, it became
my mission to vote. It’s a right the poorest person in the country has and
the richest person in the country has. Once they take it away from you,
that’s when you want it most.319

Similarly, Jimmy Ellis, a former drug offender in Tennessee who served
one year in prison and three years on parole and who now works for
Change Outreach Ministry helping young adults reenter the community
from prison, describes:
If I could vote, it would probably make me feel more better to myself
[sic], or better to society. If I was to picture a moment of voting—I’d
probably panic, or ask someone to come in and tell me what to do. I’ve
never had the opportunity to vote, because I was convicted [as a
teenager]. I’d probably stand there freezing. I’d stand in awe in the
booth all day long.320

For individuals such as David Sadler and Jimmy Ellis, disenfranchisement
has been particularly hurtful, but the hope of re-enfranchisement has
become, if not a raison d’être, then, at least, a motivating force to abide by
the law. But other individuals may not share their optimism.
Disenfranchisement may have branded them with a “permanent stigma,”321
condemned them to “internal exile,”322 relegated them “to the lowest form
of citizenship,”323 banished them to “second-class”324 or “sub-citizen”
status325—effectively placing them in a form of “political quarantine.”326
318.
ABRAMSKY, supra note 37, at 10 (quoting Jazz Hayden, a New York exoffender)).
319.
Id. at 217.
320.
Id. at 163; see also Sasha Abramsky, Speakout: Most ex-felons deserve right to
vote, ROCKY MOUNTAIN NEWS, Aug. 4, 2006, at http://www.demos.org/pubs/
Speakout%20Rocky%20Mountain%20Times%208.4.06.pdf
[hereinafter
Abramsky,
Speakout](reporting one disenfranchised individual’s description of how being able to vote
would engender him with a sense of “awe”).
321.
Karlan, supra note 15, at 1369.
322.
Ewald, Civil Death, supra note 15, at 1114.
323.
McLaughlin v. City of Canton, 947 F. Supp. 954, 971 (S.D. Miss. 1995)(“[T]he
disinherited must sit idly by while others elect his civic leaders and while others choose the
fiscal and governmental policies which will govern him and his family.”).
324.
Behrens, supra note 183, at 241.
325.
Mark E. Thompson, Don’t Do the Crime if You Ever Intend to Vote Again, supra
note 65, at 177.
326.
Ewald, Civil Death, supra note 15, at 1084.

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For some of these individuals, who undoubtedly also feel the sting of the
other collateral consequences discussed above, disenfranchisement has
made them feel like “marginalized people,”327 “nonexistent things,”328
“partial citizens,”329 “politically insignificant beings,”330 “political
outcasts,”331 and “throwaway persons,”332 to name some of the degrading
monikers. Rather than serving as a specific deterrent to future crime, the
denial of the right to vote can have such a stigmatizing effect333 as to
encumber the reentry process to the point where the individual recidivates.
As Justice Thurgood Marshall quoted in his dissent in Richardson v.
Ramirez,
‘[ex-offenders] are as much affected by the actions of government as
any other citizens, and have as much of a right to participate in
governmental decision-making. Furthermore, the denial of the right to
vote to such persons is a hindrance to the efforts of society to
rehabilitate former felons and convert them into law-abiding and
productive citizens.’334

Justice Marshall’s position in Richardson regarding the potential
rehabilitative effects of enfranchisement has been echoed by high courts in
peer democracies (as noted above), European correctional officials, and
numerous commentators. For example, in Sauvé v. Canada, a Canadian
prisoner challenged the legality of Canada’s disenfranchisement of
prisoners serving sentences of two or more years.335 In finding for the

327.
328.

ABRAMSKY, supra note 37, at 203.
Mark E. Thompson, Don’t Do the Crime if You Ever Intend to Vote Again, supra
note 65, at 176-77.
329.
KING & MAUER, THE VANISHING BLACK ELECTORATE, supra note 15, at 17.
330.
Mark E. Thompson, Don’t Do the Crime if You Ever Intend to Vote Again, supra
note 65, at 176. For a general discussion of the effect of disenfranchisement on the
individual, see id. at 176-78.
331.
Editorial, America’s Political Outcasts, ST. PETERSBURG TIMES, Nov. 16, 1998, at
10A.
332.
Interview with Anthony R. Sanchez, MSW, Georgia Justice Project, in Atlanta,
GA (June 15, 2006).
333.
KING & MAUER, THE VANISHING BLACK ELECTORATE, supra note 15, at 16 (“The
policy of disenfranchisement, declaring that one’s voting rights have been revoked, is one of
a number of stigmatizing processes in place that serve to augment the challenges faced by
persons with a felony conviction.”). Ewald, Civil Death, supra note 15, at 1107
(“[G]laringly absent from the historical and legal literature on disenfranchising offenders . . .
is the claim that imposing the sanction reduces crime.”).
334.
418 U.S. 24, 78-79 (1974) (quoting Memorandum of the Secretary of State of
California in Opposition to Certiorari, in Class of County Clerks and Registrars of Voters of
California v. Ramirez, No. 73-324.)).
335.
Sauvé v. Canada (Chief Electoral Officer), [2002] S.C.R. 519 (Sauvé No. 2),

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plaintiff, the Supreme Court of Canada stated:
Depriving at-risk individuals of their sense of collective identity and
membership in the community is unlikely to instill a sense of
responsibility and community identity, while the right to participate in
voting helps teach democratic values and social responsibility.
...
Denying prisoners the right to vote imposes negative costs on prisoners
and on the penal system. It removes a route to social development and
undermines correctional law and policy directed towards rehabilitation
and integration.336

The Constitutional Court of South Africa and the Supreme Court of Israel
reached similar conclusions on similar grounds337—decisions that are
especially noteworthy given, in the instance of South Africa, the country’s
history of apartheid, and in the case of Israel, the fact that the litigation
surrounded the franchise of Yigal Amir, the law student convicted of
assassinating Prime Minister Yitzhak Rabin.338 Likewise, in Europe,
where, as noted above, criminal disenfranchisement is much less common,
correctional officials have contended that permitting inmates to vote “is
good policy—because it may increase public safety by enhancing the
formative, rehabilitative effects of incarceration,”339 as well as “prepare
prisoners for resettlement.”340
Finally, the political scientist Alec C. Ewald remarks that “denying exoffenders the vote impedes their reintegration into society by stigmatizing
them as second-class citizens,” because voting “constitutes precisely the
available at http://scc.lexum.umontreal.ca/en/2002/2002scc68/2002scc68.pdf. In Sauvé v.
Canada (Attorney General), [1993] S.C.R. 438 (Sauvé No. 1), available at
http://scc.lexum.umontreal.ca/en/1993/1993rcs2-438/1993rcs2-438.pdf, Rick Sauvé, a
Canadian prisoner, challenged Canada’s blanket prohibition on prisoner voting. After the
Supreme Court of Canada ruled for Sauvé, the Canadian Parliament amended the Canada
Elections Act, extending the franchise to prisoners serving sentences of two years or less.
Canada Elections Act, 2000 S.C., ch. 9, § 4, (Can.). Because Sauvé remained
disenfranchised even after this change, he commenced his second litigation.
For an overview of the Sauvé litigation, see ISPAHANI, supra note 15, at 11-13. For a
discussion of the Canadian law that spurred Sauvé No. 2 see Jean Hampton, Punishment,
Feminism, and Political Identity: A Case Study in the Expressive Meaning of the Law, 11
CAN. J. L. & JURISPRUDENCE 23 (1998).
336.
Sauvé No. 2, at ¶ 38, 59.
337.
ISPAHANI, supra note 15, at 13-18.
338.
Id., at 11, 13-15, 17-18.
339.
Id. at 5.
340.
Id.

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kind of activity which can help criminals become law-abiding members of
the polity.”341 And a recent study by the sociologists Christopher Uggen
and Jeff Manza has concluded that among those individuals who have been
arrested, those who vote are only half as likely to recidivate as non-voters:
“Taken as a whole . . . our statistical analysis suggests that a relationship
between voting and subsequent crime and arrest is not only plausible, but
also supported by empirical evidence. We find consistent differences
between voters and non-voters in rates of subsequent arrest, incarceration,
and self-reported criminal behavior.”342 Although Uggen and Manza
express reservations about attributing law-abiding behavior solely to
participation in the franchise,343 they do maintain that “[a]t a minimum, our
multivariate analysis suggests that the political participation effect is not
entirely attributable to preexisting differences between voters and nonvoters in criminal history, class, race, or gender.”344
While Uggen and Manza’s statistical findings may help bolster the
anecdotal evidence and philosophical/penological theories asserting
connections between (re-)enfranchisement and rehabilitation, and between
disenfranchisement and crime-inducing societal detachment, the impact of
criminal disenfranchisement extends well beyond recidivism. As the
casualties of the War on Crime and the War on Drugs have risen, so too
have the numbers of disenfranchised (minority) individuals—prisoners,
parolees, probationers, and those who, as mentioned earlier in this Section,
have fully completed their sentences. As one commentator notes, if the
total incarcerated population of the United States (never mind the total
disenfranchised population) were a state of its own, it would qualify for
five Electoral College votes.345 Even without such a concentration,
criminal disenfranchisement has reached the point of altering national, state
and, to a lesser extent, local elections.346
a.

Impact of Criminal Disenfranchisement on Elections

It is, of course, impossible to determine with complete certainty the
341.
342.

Ewald, Civil Death, supra note 15, at 1113-15.
Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and Arrest:
Evidence from a Community Sample, 36 COLUM. HUM. RTS. L. REV. 193, 212-13 (2004).
343.
Id. at 213 (“[The] act of casting a ballot is unlikely to be the sole factor that turns
felons’ lives around . . . .”).
344.
Id.
345.
Hamsher, supra note 15, at 299.
346.
See Mauer, Mass Imprisonment and the Disappearing Voters, supra note 179, at
53 (asserting that the “the historic levels” of criminal disenfranchisement in the United
States are “likely to have a profound impact on actual electoral results”); see generally
ABRAMSKY, supra note 37, at 2 (“[T]he prison system [has] spiraled so out of control that it
[is] ripping millions of people away helter-skelter from the body politic.”).

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extent of voter participation and the nature of electoral choice had
offenders and ex-offenders been permitted to vote in previous elections.
But Manza and Uggen, examining census and election study data,347 have
concluded that as many as seven U.S. Senate elections and one presidential
election in the years spanning 1972 to 2000 might have hinged on the
disenfranchisement of some or all offenders and ex-offenders.348 (Manza
and Uggen began their analysis with the 1972 presidential election because
it was the first presidential election for which they could sketch the sociodemography of incarcerated felons and, more significantly, because it was
the election that immediately preceded the dramatic rise in incarceration
rates mentioned at the beginning of this Part.)349
In the 2000 presidential election, Democratic candidate Al Gore won a
plurality of the popular vote but lost narrowly in the Electoral College to
Republican George W. Bush.350 Manza and Uggen estimated that not only
would Gore’s margin of victory in the popular vote have increased had
disenfranchised offenders and ex-offenders been allowed to vote, but that
the exclusion of these individuals from the franchise in Florida alone
would have tipped the electoral votes and subsequently the election in
Gore’s favor.351 Because Florida (at the time) disenfranchised ex-felons, in
addition to incarcerated felons and those on probation and parole, Manza
and Uggen also considered whether ex-felon disenfranchisement in Florida
alone influenced the 2000 election. They concluded that if only this subset
of disenfranchised individuals had been permitted to vote, the results of the
2000 election would have been reversed.352
347.
Jeff Manza and Christopher Uggen used data from the Voter Supplement File of
the Current Population Survey (CPS)—a monthly survey of individuals conducted by the
U.S. Census Bureau that includes questions about political participation—to estimate
disenfranchised population participation. Uggen & Manza, Democratic Contraction, supra
note 39, at 783-84. They used the National Election Study (NES) to predict vote choice for
disenfranchised offenders, while correcting for typical over-reporting of turnout, Manza &
Uggen, Punishment and Democracy, supra note 58, at 496, and taking into account both the
likelihood that offenders and ex-offenders would vote at lower rates than the rest of the
general public and the probability that they would vote Democratic. Uggen & Manza,
Democratic Contraction, supra note 39, at 783-84, 786.
348.
Uggen & Manza, Democratic Contraction, supra note 39, at 794; see also Manza
& Uggen, Punishment and Democracy, supra note 58, at 497.
349.
See Uggen & Manza, Democratic Contraction, supra note 39, at 784.
350.
See id. at 792.
351.
Id. (“Although the outcome of the extraordinarily close 2000 presidential election
could have been altered by a large number of factors, it would almost certainly have been
reversed had voting rights been extended to any category of disenfranchised felons.”).
352.
Manza & Uggen, Punishment and Democracy, supra note 58, at 497-99 (“Had
[Florida’s approximately 614,000 ex-felons] been allowed to vote, we estimate that some
27.2 percent would have turned out, and that 68.9 percent would have chosen the Democrat,

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While the 2000 presidential election was certainly historic for its razorthin electoral vote margin (not to mention the Supreme Court’s peculiar
reasoning in stopping the ballot recount in certain Florida counties353), it
was not anomalous as a close election that would have had a different result
if ex-offenders alone had been permitted to vote. According to Manza and
Uggen, three Senate elections would have likely been reversed with solely
ex-offender participation: Virginia in 1978 (John Warner (R) over Andrew
Miller (D)); Kentucky in 1984 (Mitch McConnell (R) over Walter
Huddleston (D)); Kentucky in 1998 (Jim Bunning (R) over Scotty Baesler
(D)).354 Had prisoners remained disenfranchised, but other offenders
(probationers and parolees) and ex-offenders been permitted to vote, as is
the practice in some states and many countries,355 Manza and Uggen have
concluded that additional Senate elections might have been reversed during
the 1972 to 2000 period.356
Since 1978—the year in which the Virginia Republican John Warner
defeated Democratic candidate Andrew Miller for a seat in the U.S.
Senate—there have been over 400 Senate elections.357 Given the small
percentage of Senate elections that might have been reversed had some or
all offenders and ex-offenders been permitted to vote, one must ask
whether the potentially different outcomes would have had any real impact
(aside from the obvious effect on the winners and losers of those elections).
In other words, one must query whether Manza and Uggen’s research is
Gore. This would have resulted in a net Democratic gain of 63,079 votes, and a final Gore
victory margin of 62,542.”).
353.
See, e.g., Bush v. Gore, 531 U.S. 98, 109 (2000) (“Our consideration is limited to
the present circumstances, for the problem of equal protection in election processes
generally presents many complexities.”).
354.
Manza & Uggen, Punishment and Democracy, supra note 58, at 497; Uggen &
Manza, Democratic Contraction, supra note 39, at 787-90.
355.
See supra note 203 and accompanying text discussing states that permit
probationers and parolees to vote; see sources cited supra notes 190-192 and accompanying
text discussing countries that permit nonincarcerated individuals to vote.
356.
Manza & Uggen, Punishment and Democracy, supra note 58, at 497-99. They
observe,
The impact of disenfranchisement has been greatest in narrow Republican
victories in states with restrictive felon disenfranchisement rules that apply not
only to former felons, but to probationers, parolees, and former felons as well.
These tend to be states with large African American electorates. If we look . . . at
the seven states where U.S. Senate elections have gone to Republicans in part
because of felon disenfranchisement–i.e., in Florida, Georgia, Texas, Virginia,
Wyoming, and twice in Kentucky–all except Wyoming are southern states with
relatively large Black or minority populations.
Uggen, Manza & Behrans, Disenfranchisement of African Americans, supra note 50, at 53.
357.
See Uggen & Manza, Democratic Contraction, supra note 39, at 789.

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nothing more than academically interesting.
While it might be tempting to dismiss their findings regarding Senate
elections as without significant national impact, Manza and Uggen assert,
and this Author would agree, that “even this small number might have
shifted the balance of power in the Senate, which has been fairly evenly
divided between the two major parties over this period.”358 More
specifically:
Assuming that Democrats who might have been elected in the absence
of felon disenfranchisement had held their seats as long as the
Republicans who narrowly defeated them . . . the Democratic Party
would have gained parity in 1984 and held majority control of the U.S.
Senate from 1986 to the present. Changing partisan control of the
Senate would have had a number of important policy consequences: In
particular, it might have enabled the Clinton administration to gain
approval for a much higher proportion of its federal judicial nominees,
and key Senate committees would have shifted from Republican to
Democratic control.359

Manza and Uggen do not venture so far as to suggest specific legislation
that might have reached more favorable results with Democratic control of
Senate committees or that might have been passed or been defeated with
Democratic parity and/or majority control of the entire Senate. Nor are they
willing to speculate in detail how the disenfranchisement of some or all
offenders and ex-offenders would have affected local, state legislative, and
House elections.360 They do suggest, however, that “given the heavy
concentration of felony convictions in urban areas . . . focusing on statelevel or presidential elections understates the full electoral impact of felon
disenfranchisement.”361 They also warn:
Disenfranchised felons and ex-felons currently make up 2.28 percent of
the voting-age population, a figure that we project may rise to 3 percent
within 10 years. Because the margin of victory in 3 of the last 10
presidential elections has been 1.1 percent of the voting-age population

358.
359.

See id.
Id. at 794. It bears mention that while incumbency by no means guarantees seat
retention, the likelihood is great and the advantages significant. See id. at 789.
360.
Manza & Uggen, Punishment and Democracy, supra note 58, at 499 (“[B]ecause
of the lack of systematic information about the precise neighborhoods and legislative
districts where disenfranchised felons originate, we cannot easily estimate the political
impact of disenfranchisement below the state level.”).
361.
Id. See also Uggen, Manza & Behrans, Disenfranchisement of African Americans,
supra note 50, at 53 (“Given the concentration of convicted felons and former felons in
urban areas . . . it is quite likely that the electoral impact is even more significant at local
and municipal levels.”).

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or less, felon disenfranchisement could be a decisive factor in future
presidential races.
....
Unless disenfranchisement laws change, the political impact is likely to
intensify in the future.362

While Manza and Uggen recommend changes in criminal
disenfranchisement laws as a means of expanding the electorate, they also
suggest that “high rates of criminal punishment, rather than new
[disenfranchisement] laws, account for the political impact of felon
disenfranchisement.”363 Thus, an alternative or additional method for
reducing the political impact of criminal disenfranchisement would be to
decrease the reliance on punishment that results in disenfranchisement,
which would include reforming the harsh sentencing policies mentioned at
the beginning of this Part.364
Obviously, a discussion of the merits and political feasibility of
lessening or repealing mandatory minimum sentences, “Three Strikes and
You’re Out” laws, and truth-in-sentencing policies is well beyond the scope
of this Article. But it does bear mention that the public has now begun to
reject these previously popular punishments and sentencing policies.
According to recent research conducted by Peter D. Hart Research
Associates, Inc. for The Open Society Institute, using focus groups in
diverse geographic locations (Columbus, OH, Philadelphia, PA, and
Atlanta, GA, each consisting of sessions with white swing voters, political
professionals, and criminal justice professionals), as well as a nationwide
telephone survey of a representative cross section of adults, a majority now
favor judicial discretion over Three Strikes policies and other mandatory
sentencing laws.365 While the public has not reached a solid consensus on
362.
Uggen & Manza, Democratic Contraction, supra note 39, at 794, 796 (citations
omitted).
363.
Id. at 795.
364.
See FELLNER & MAUER, supra note 110, at part IV (“[T]he proportion of the
population that is disenfranchised has been exacerbated in recent years by the advent of
harsh sentencing policies such as mandatory minimum sentences, ‘three strikes’ laws and
truth-in-sentencing laws.”); Uggen & Manza, Democratic Contraction, supra note 39, at
795 (“As the number of disenfranchised felons expands, the electorate contracts. Because
the contracted electorate now produces different political outcomes than a fully enfranchised
one, mass incarceration and felon disenfranchisement have clearly impeded, and perhaps
reversed, the historic extension of voting rights.” (emphasis added)).
365.
PETER D. HART RESEARCH ASSOCIATES, INC., CHANGING PUBLIC ATTITUDES
TOWARD THE CRIMINAL JUSTICE SYSTEM: SUMMARY OF FINDINGS 12-13, 18-20 (Feb. 2002),
http://www.soros.org/initiatives/justice/articles_publications/publications/hartpoll_2002020
1/Hart-Poll.pdf (discussing the “public’s growing doubts about the ‘lock ‘em up’ approach

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mandatory minimum sentences, which, as mentioned above, have led to
more people being sent to prison and being required to serve longer terms,
support for such provisions has eroded dramatically.366
Although Manza and Uggen have expressed reservations about
estimating the impact of disenfranchisement on local and state legislative
elections, apart from the broad statements quoted above, at least one
commentator has pointed to specific elections below the state level affected
by criminal disenfranchisement. Abramsky, while agreeing that elections
with a diverse socio-economic electorate are more likely to be influenced
by criminal disenfranchisement,367 points to one state legislative election
and one U.S. House of Representatives election that likely turned on
criminal disenfranchisement: Republican Lance Horbach’s November 1997
election to the Iowa House of Representatives for District 40, Tama and
Grundy Counties, and Republican George Felix Allen’s November 1991
victory in a special election to fill the seat in the U.S. House of
Representatives for Virginia’s 7th District.368 Horbach, who is in his fourth
term in the Iowa House and currently serves as the Chairman of the Justice
Appropriations Subcommittee and on the Commerce, Regulation and
Labor, Public Safety, Environmental Protection, and Appropriations
Standing Committees, won the November 1997 election by “a mere two
votes,” to use his own language369—a number that was increased to nine
after three recounts.370 According to Abramsky, “[w]hile it would be
impossible to prove from this distance, it’s certainly not unlikely that had
some of his poorer constituents been able to vote after serving out their
felonies, Horbach would never have won the election and risen to become
one of his state’s most influential political figures.”371 Indeed, Horbach
to crime” and finding that fifty-six percent of adults, including majorities of Republicans,
independents, and Democrats, all favor elimination of three strikes laws).
366.
Id., at 12-13; Fox Butterfield, With Cash Tight, States Reassess Long Jail Terms,
N.Y. TIMES, Nov. 10, 2003 (“In the past year, about 25 states have passed laws eliminating
some of the lengthy mandatory minimum sentences [formerly] so popular . . . .”); see also
Brent Staples, Why Some Politicians Need Their Prisons to Stay Full, N.Y. TIMES, Dec. 27,
2004 at A20 (discussing mandatory sentencing policies and stating that “polls have shown
growing support for drug law reform”).
367.
ABRAMSKY, supra note 37, at 129 (“[O]n the whole, it is elections for the
country’s president, Senate, and congressional districts, which incorporate a large number of
disparate communities, for governors, and for citywide mayors’ positions that are most
concretely impacted by disenfranchisement.”).
368.
Id. at 133-34, 178-79.
369.
See http://www.lancehorbach.com/ (follow “About Lance” hyperlink)(last visited
April 8, 2007); see also ABRAMSKY, supra note 37, at 133.
370.
See http://www.lancehorbach.com/ (follow “About Lance” hyperlink)(last visited
April 8, 2007); see also ABRAMSKY, supra note 37, at 133.
371.
ABRAMSKY, supra note 37, at 133-34.

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wields considerable power as Chairman of the Justice Appropriations
Subcommittee, a committee that controls the third largest budget in the
state of Iowa and which allocates money to the courts, prisons and several
state agencies including the Department of Public Safety and the Iowa State
Patrol372—institutions and agencies with which many of his poorer
residents come into contact.373
Allen, similarly, also won an election early in his career by a small
margin, albeit one a bit larger than Horbach’s.374 According to Abramsky,
Allen, who ran as a staunch law-and-order conservative, would not have
won without a boost from Virginia’s restrictive criminal
disenfranchisement laws.375 Although Allen was forced to leave Congress
in 1993 as a result of redistricting pursuant to the Voting Rights Act that
eliminated his district, he was elected governor in 1993. After serving one
term—Virginia’s Constitution limits governors to one four-year term in
office376—he was elected to the U.S. Senate in 2000, defeating the
Democratic incumbent, Chuck Robb. He served on the Commerce, Science
and Transportation Committee, the Small Business and Entrepreneurship
Committee, the Foreign Relations Committee and the Energy and Natural
Resources Committee, and previously served as Chairman of the National
Republican Senatorial Committee, overseeing the Republican gain of four
seats in the 2004 Senate elections. While there is, of course, no way of
knowing whether Allen would have reached such political heights had the
1991 U.S. congressional election been reversed, his support for Virginia’s
truth-in-sentencing law in the early-to-mid-1990s and his spearheading of
the Commonwealth’s massive prison expansion, as well as his veto of bills
to create full-time public defenders’ offices in cities like Charlottesville, are
all well-known and have undoubtedly contributed to a growing
disenfranchised population in the state.377
b. Impact of Criminal Disenfranchisement on Neighborhoods and
Communities

The influence of disenfranchisement on presidential elections (and to a
372.
373.
374.

See http://www.lancehorbach.com/ (last visited April 8, 2007).
See ABRAMSKY, supra note 37, at 133.
Id. at 178. Allen lost in his first political race in 1979, but won a seat in the
Virginia House of Delegates in 1983, where he served until 1991. David Holman, The
Jeffersonian, THE AMERICAN SPECTATOR, July 18, 2006, available at
http://www.americanprowler.org/dsp_article.asp?art_id=10100.
375.
Id.
376.
VA. CONST. art. V, § 1.
377.
See ABRAMSKY, supra note 37, at 179 (noting how Virginia ranks towards the top
of the list of states in raw numbers of prisoners and total percentage of population
incarcerated).

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slightly lesser extent, U.S. Senate elections) touches everyone simply by
virtue of who wins and who loses;378 neighborhoods and communities are
similarly, yet more specifically, impacted by local elections that hinge on
the exclusion of convicted offenders. But criminal disenfranchisement has
additional bearing on offenders’ and ex-offenders’ home communities,
especially low-income African-American communities,379 whose residents,
as mentioned earlier in this Part, are disproportionately represented in jails
and prisons and disproportionately disenfranchised.380 According to Ryan
S. King and Marc Mauer of The Sentencing Project:
[P]rohibiting persons from voting due to a felony conviction has
significance at the community level . . . particularly in areas of high
concentration of disenfranchisement. . . .
....
Whereas felony disenfranchisement has its primary impact on
individuals, it also exerts a vote dilution impact on particular
communities. Given the concentration of felony disenfranchisement in
primarily African American communities, persons who have not been
convicted of a felony are affected through the diminished strength of
their political voice. . . .
This disenfranchisement effect contributes to a vicious cycle within
public policy development that further disadvantages low-income
communities of color. The first means by which this occurs is through
decisions on resource allocation. In citywide decisionmaking regarding
spending for schools or social services, residents of certain
neighborhoods will have considerably more political influence than
others, solely because “one person, one vote” is distorted through the
loss of voting rights.

378.
Manza & Uggen, Punishment and Democracy, supra note 58, at 497 (“[F]elon
disenfranchisement has provided a small but clear advantage to Republican candidates in
every presidential and senatorial election from 1972 to 2000.”); see Pinaire, Heumann &
Bilotta, supra note 15, at 1545-46 (“Democrats are expected to be the beneficiaries of such
an extension of the franchise.”).
379.
Finzen, supra note 67, at 322 (“As long as collateral consequences laws remain on
the books and operate as broadly as they do today, they will continue to have destabilizing
and devastating effects on Black communities.”); Harvey, supra note 210, at 1147 (“[D]ue
to the disproportionate percentage of black convicted felons removed from the already
limited pool of eligible black voters, ex-felon disenfranchisement negatively impacts the
black vote.”); Mark E. Thompson, Don’t Do the Crime if You Ever Intend to Vote Again,
supra note 65, at 177 (“Disenfranchisement has had the most severe impact on the AfricanAmerican community.”).
380.
See supra notes 184, 185 and accompanying text.

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At a state level, beleaguered communities are affected through a
diminished impact on public policy.381

In other words, neighborhoods and communities with significant numbers
of criminally disenfranchised individuals (or, in the case of Tama and
Grundy counties in Iowa, a handful of disenfranchised parolees,
probationers, and ex-offenders) may find that they are less able to push
candidates of their choice to victory, pressure elected officials with the
threat of withdrawal of support to bring positive change to their localities,
and express their displeasure at the ballot box.382 As Peggy M. Shepard,
Executive Director and Co-Founder of West Harlem Environmental
Action, Inc. (WE ACT), explains in the context of environmental injustice,
discussed in greater detail in infra Part III.A:
Communities and grassroots organizations must plan and act to gain
political and legal authority over planning, land use, and zoning
decisions in their neighborhoods to ensure community representation
and input in privately-developed and tax-aided projects. Communities
must plan to achieve positions on community task forces, government
advisory boards, commissions, and relevant non-profit boards to
influence the public policy agenda. Communities must educate local,
state, and federal legislators on their issues and concerns and monitor
their actions, or lack of action, to ensure their accountability to the
community.383

But communities burdened by disenfranchisement, she continues, suffer in
that they “rarely have advocacy systems to substantively and effectively
affect policy development.”384 This is true because of the legal criminal
disenfranchisement of a portion of an electorate in and of itself, but also
because the legal criminal disenfranchisement of a portion of an electorate
381.
KING & MAUER, THE VANISHING BLACK ELECTORATE, supra note 15, at 1, 15; see
generally Wacquant, supra note 51, at 119 (“By entombing poor blacks in the concrete
walls of the prison, then, the penal state has effectively smothered and silenced
subproletarian revolt.” ).
382.
Marc Mauer, TrendLetter: Political Report: Disenfranchising Felons Hurts Entire
Communities, Joint Center for Political and Economic Studies, FOCUS 6 (May/June 2004),
http://www.sentencingproject.org/pdfs/focus-mayjune04.pdf
[hereinafter
Mauer,
Disenfranchising Felons Hurts Entire Communities] (“Communities with high rates of
people with felony convictions have fewer votes to cast. All residents of these
neighborhoods, not just those with a felony conviction, becomes less influential than
residents of more affluent neighborhoods.”); see also ABRAMSKY, supra note 37, at 135
(discussing Iowa felons “wanting to be able to vote for the school boards that ran the
schools to which they sent their children”).
383.
Peggy M. Shepard, Issues of Community Empowerment, 21 FORDHAM URB. L.J.
739, 750-51 (1994).
384.
Id. at 750.

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can function as a de facto form of disenfranchisement for those able and
willing to cast their votes.385 Such voting-eligible individuals watch
helplessly as their franchise is weakened when candidates for political
office spend less time in their neighborhoods and communities because
there are fewer voters to win over.386 With politicians focusing their
attention away from neighborhoods and communities with high rates of
disenfranchisement, these communities subsequently start receiving fewer
appropriations for schools and social services, as mentioned above, which
can be devastating given that these are the communities that often need the
most help. The diminished allocation of resources further catalyzes the
communities’ slide into despair and disrepair—incubating conditions for
crime (and subsequently further disenfranchisement).387 According to one
commentator, if a community’s political influence diminishes too much,
the very existence of the community can be threatened: “a community is a
geographically defined area whose residents feel a sense of political
solidarity and effectiveness vis-a-vis local government. Without a
minimum amount of political power, whole neighborhoods can entirely
disappear through abandonment, gentrification, or displacement.”388
385.
Anthony C. Thompson, Hidden Obstacles to Reentry, supra note 61, at 282-83
(“The loss of voting power has ramifications not only for the individual ex-offender, but
also for the communities to which ex-offenders return, which will then include growing
numbers of residents without a recognized political voice.”).
386.
KING & MAUER, THE VANISHING BLACK ELECTORATE, supra note 15, at 16 (“In
the calculated economics of electoral campaigning, candidates spend time in areas perceived
to have the highest concentration of potential voters.”).
387.
See generally Robert Agnew, A Revised Strain Theory of Delinquency, 64 SOCIAL
FORCES 151, 156 (1985) (arguing that strain, and subsequently frustration, anger and
delinquency, may result not only from the failure to achieve positively valued goals, such as
education and occupation goals, but also from the inability to escape legally from painful
situations–adolescents “lack power and are often compelled to remain in situations which
they find aversive. . . . (Certain adults, unable to take advantage of these legal escape routes
due to economic hardship or other factors, may resemble adolescents in their lack of
power.)”); Robert Agnew, Foundation for a General Strain Theory of Crime, 30
CRIMINOLOGY 47, 58-59 (1992) (discussing how a wide range of “noxious stimuli,” such as
negative relations with parents, peers, and teachers, as well as an array of stressful life
events, unpleasant odors, disgusting scenes, noise, heat, air pollution, personal space
violations, and high density, may all lead to delinquency and aggression); Gresham M.
Sykes & David Matza, Techniques of Neutralization: A Theory of Delinquency, 22 AM. SOC.
REV. 664, 667 (1957) (“[T]he delinquent approaches a ‘billiard ball’ conception of himself
in which he sees himself as helplessly propelled into new situations. . . . By learning to view
himself as more acted upon than acting, the delinquent prepares the way for deviance from
the dominant normative system without the necessity of a frontal assault on the norms
themselves.”).
388.
Angela P. Harris, Criminal Justice as Environmental Justice, 1 J. GENDER RACE &
JUST. 1, 35 (1997).

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Another way in which criminal disenfranchisement exerts a “vote
dilution impact” on certain neighborhoods and communities, to use King
and Mauer’s phrase, is through the U.S. Census Bureau’s “usual residence
rule”—the approach used by the Bureau to determine where to count
people in its constitutionally mandated decennial census.389 An individual’s
“usual residence,” according to the Census Bureau, is “the place where the
person lives and sleeps most of the time. This place is not necessarily the
same as the person’s voting residence or legal residence.”390 Often,
determining an individual’s usual residence does not present much of a
problem for the Census Bureau; his home is his usual residence. But for
people without housing, live-in nannies, military personnel, migrant
workers, workers who commute, snowbirds, college students, children in
joint custody, and other individuals with multiple residences, ascertaining
an individual’s usual residence can present difficulties.391 As U.S. society
has become more mobile with more workers commuting and residing in
multiple places, and more young adults attending college away from home
and often out-of-state, discovering an individual’s usual residence has
become even more challenging. Nevertheless, the “usual residence rule”—
which has been in place since the first census in 1790392—has worked
fairly well and has not been the source of much controversy.393 But as the
U.S. prison population has grown,394 the application of the “usual residence
rule” to prisoners, who are counted at the locus of their correctional
institutions (including prisons, jails, detention centers, or halfway
houses),395 rather than at their home addresses, has become the subject of
much debate and consternation.396
To understand why the application of the “usual residence rule” to
prisoners is troublesome, consider that most prisoners are legal residents of

389.
U.S. CENSUS BUREAU, PLANS AND RULES FOR TAKING THE CENSUS: RESIDENCE
RULES:
FACTS
ABOUT
CENSUS
2000
RESIDENCE
RULES
(1999),
http://www.census.gov/population/www/censusdata/resid_rules.html#usual
[hereinafter
CENSUS 2000 RESIDENCE RULES]. The U.S. Census Bureau undertakes the counting of
people in each State to apportion the seats in the U.S. House of Representatives among the
States. See U.S. CONST. art. I, § 2, cl. 3; U.S. CONST. amend. XIV, § 2.
390.
CENSUS 2000 RESIDENCE RULES, supra note 389.
391.
Id.
392.
Id.
393.
See Hamsher, supra note 15, at 301.
394.
See sources cited supra notes 56, 57 and accompanying text; see also Hamsher,
supra note 15, at 302 (“[S]ince 1970, the U.S. prison population has grown more than
600%, and continues its torrid growth.”).
395.
CENSUS 2000 RESIDENCE RULES, supra note 389.
396.
See Hamsher, supra note 15, at 300 & n.7.

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urban areas.397 Under the Census Bureau’s method of counting, which
“comes neither from the U.S. Constitution nor from a federal statute, but
rather from an administrative determination that such a rule would be an
effective means of enumeration,”398 prisoners become “residents” of the
correctional institution in which they eat and sleep during the (usually
short) period of their incarceration399—frequently a prison located in a
rural area.400 For example, in New York State, the majority of all state
prisoners legally reside in one of the five boroughs of New York City, but
only a small fraction—less than ten percent—are incarcerated there.401
Consequently, “prisoner-exporting communities [such as those in New
York City] experience a dilution of their relative voting power, while
prisoner-importing communities [such as those in upstate New York]
experience a corresponding strengthening of their relative voting
power.”402 As Professor Karlan explains:
[T]he interaction of incarceration and disenfranchisement can skew the
balance of political power within a state. The Census Bureau counts
inmates where they are incarcerated. The population figures the Bureau
provides are used by states to draw legislative districts. Because every
state but Maine and Vermont disenfranchises individuals while they are

397.
Id. at 302. According to Wacquant, “in the wake of the ‘urban riots’ of the 1960s,
which in truth were uprisings against intersecting caste and class subordination, ‘urban’ and
black became near-synonymous in policy making as well as everyday parlance.” Wacquant,
supra note 51, at 117.
Note that legal residency is determined at the state level and differs from state to state. See,
e.g., Hamsher, supra note 15, at 305.
398.
Hamsher, supra note 15, at 301.
399.
Id. at 301-02; CENSUS 2000 RESIDENCE RULES, supra note 389; see also Editorial,
Phantom Constituents Behind Bars, N.Y. TIMES, May 2, 2006, at A24 (“Counting the
inmates at prison inflates the prison community’s population and political influence, while
draining political clout from the communities where inmates actually live.”).
400.
Hamsher, supra note 15, at 302 (“Much of the growth in prison facilities has been
in rural areas, while the majority of inmates come from urban areas.”); see also Huling,
supra note 96, at 210 (“The near-doubling of the prison population and the rural prison
boom during the 1990s portends a substantial transfer of dollars from urban to rural America
because prison inmates are counted in the populations of the towns and counties in which
they are incarcerated and not in their . . . [urban] neighborhoods.”).
401.
Editorial, Prison-Based Gerrymandering, N.Y. TIMES, May 20, 2006, at A12;
Hamsher, supra note 15, at 302-03.
402.
Hamsher, supra note 15, at 302; see also Prison-Based Gerrymandering, supra
note 401 (describing state legislatures as “typically count[ing] the inmates as “residents” to
pad state legislative districts that sometimes contain too few residents to be legal under
federal voting rights law,” thereby exaggerating the political power of the rural areas where
prisons are built while “diminish[ing] the power of the mainly urban districts where inmates
come from and where they inevitably return”).

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incarcerated, people in prison serve as essentially inert ballast in the
redistricting process. Especially given the prevalent practice of building
prisons far away from the cities where most inmates lived before they
were sent to prison, the practices increase the power of officials who
have no reason to represent these only notional ‘constituents.’ At the
same time, incarceration reduces the population of the communities
from which inmates come, and to which most of them return, thereby
diminishing those communities’ entitlement to legislative seats and
legislative clout.403

While the deflation of voting power of low-income urban minority
communities and the simultaneous strengthening of rural prison
communities’ political muscle due to the “usual residence rule” is itself
troubling, what makes the Census Bureau’s method of enumeration as
applied to prisoners and the subsequent data generated especially
disconcerting is that these data are frequently used to distribute billions of
dollars of federal funding to state and local government agencies.404 As
Professor Anthony C. Thompson explains:
The twin circumstances of high incarceration rates of individuals from
low-income urban communities and the Census Bureau’s decision to
count prisoners as residents of the communities in which prisons [a]re
located mean[s] that low-income communities los[e] numbers for

403.
Karlan, supra note 15, at 1364-65 (footnote omitted); see also Phantom
Constituents in the Census, N.Y. TIMES, Sept. 26, 2005, at A16 (describing this “padding of
electoral districts’ population figures” as shifting political power from urban areas to those
rural areas where prisons are sited, and noting, “legislators from the rural prison counties
often use this purloined power to vote against the interests of [those] urban communities”);
Huling, supra note 96, at 212 (“[I]f prisoners are allowed to be counted in the region of their
imprisonment for the purposes of political representation, then their votes are effectively
given to those who happen to live near a prison, thus diluting the voting power of the
predominantly black, Hispanic, and urban prison population and giving it to mostly white,
rural regions.”); Sam Roberts, Panel Recommends Change in Census Prisoner Count, N.Y.
TIMES, Sept. 15, 2006, at B7 (“The impact of counting inmates where they are incarcerated
is magnified in New York, where most inmates come from downstate and are held in
prisons upstate.”).
404.
Hamsher, supra note 15, at 306-07; ROSE HEYER & PETER WAGNER, PRISON
POLICY INITIATIVE, PRISONERS OF THE CENSUS: TOO BIG TO IGNORE: HOW COUNTING PEOPLE
IN
PRISONS
DISTORTED
CENSUS
2000
(April
2004),
http://www.prisonersofthecensus.org/toobig/toobig.html
(“Counting
large
external
populations of prisoners as local residents leads to misleading conclusions about the size
and growth of communities.”); Editorial, Counting Noses in Prison, N.Y. TIMES, Apr. 18,
2006, at A26 (criticizing the Census Bureau’s method of counting prison inmates as
residents of prison districts rather than as residents of their home communities because it
“causes some prison districts to collect more than a fair share of federal dollars earmarked
for the poor”).

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purposes of the Census. Financial resources in the form of state and
federal aid are tied, in part, to census figures. States such as Arizona,
Illinois, and Wyoming use census figures to distribute state tax revenue
and other funds. One hundred and eight-five billion dollars a year in
federal aid are distributed on the basis of census figures. Federal
programs based at least partially on census data include job training,
school funding, national school lunch programs, Medicaid, and
community development programs. The loss of population numbers can
diminish the financial health of communities that rely on such
programs. Indeed, as urban communities los[e] out, some rural
communities st[an]d to gain. Towns located close to prisons [a]re able
to include prisoners’ low incomes in their per capita income figures.
Thus, the towns appear[] poorer and bec[o]me eligible for more
poverty-related grants.405

To illustrate, consider the town of Florence, Arizona, which, according to
2000 Census Bureau data, contains a population of 17,054 individuals.406
But the “institutionalized population” of Florence numbers 11,830—69.4
percent—due in part to the presence of Arizona State Prison Complex Florence, or Florence State Prison (FSP).407 Thus, while the incarcerated
population inflates the total population, it deflates the per capita income
(total personal income/total population),408 as evidenced by the figure of
$11,278 (measured in 1999 dollars) for Florence.409 As a result, and as
Professor Thompson indicates above, the town of Florence is able to reap
the financial benefits of its prison population410 to the exclusion of both the
405.
Anthony C. Thompson, Hidden Obstacles to Reentry, supra note 61, at 286
(footnotes omitted); see also Hamsher, supra note 15, at 301 (“Today, Census Bureau data
is used extensively, not only to apportion population to both state and federal legislative
districts, but also for the annual allocation of more than $140 billion in formula-based
federal grants to state and local jurisdictions.”).
406.
U.S. CENSUS BUREAU, CENSUS 2000, TABLE DP-1. PROFILE OF GENERAL
DEMOGRAPHIC CHARACTERISTICS: 2000: GEOGRAPHIC AREA: FLORENCE TOWN, ARIZONA,
available at http://www.town.florence.az.us/ [click on “About Florence”; then click on
“Town of Florence Census Information”] (last visited Apr. 21, 2007).
407.
Id.; see also Sasha Abramsky, Incarceration, Inc., THE NATION, July 19, 2004,
available at http://www.thenation.com/doc/20040719/abramsky.
408.
See Phantom Voters, Thanks to the Census, N.Y. TIMES, Dec. 27, 2005, at A22
(“Since inmates are jobless, their presence . . . allows prison districts to lower their per
capita incomes, unfairly increasing their share of federal funds earmarked for the poor.”).
409.
U.S. CENSUS BUREAU, FACT SHEET: FLORENCE TOWN, ARIZONA: CENSUS 2000
DEMOGRAPHIC PROFILE HIGHLIGHTS, at http://factfinder.census.gov/ [enter Florence, and
select “Arizona” in the “Get a Fact Sheet for your Community” form].
410.
According to Marc Mauer of The Sentencing Project:

In sparsely populated areas, large prison facilities can result in significant
distortions of the local population. In Florence, Arizona, for example, two-thirds

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prisoners’ pre-incarceration home communities—communities already
suffering from economic blight411 and the very communities that would
have received the funding and services from the federal and state
governments had these individuals not been incarcerated412—and the
prisoners themselves (because most of the funding a prison-town receives
does not go to improving prison programming or the conditions of
incarceration).413
Because rural prison communities garner federal dollars as a result of
their prison populations, elected officials from these communities are
unlikely to propose measures to eradicate this unfair phenomenon.414 But
of the town’s 16,000 residents are people in prison. Since the census count is used
to determine political apportionment and funding streams, such towns have a
population that is artificially inflated for these purposes. One study estimates that
each prisoner brings in between $50 to $250 annually to the local government in
which he or she is housed. Thus, a new 500-bed prison may yield about $50,000
in new revenue.
Marc Mauer, Thinking About Prison and Its Impact in the Twenty-First Century, 2 OHIO ST.
J. CRIM. L. 607, 617 (2005) [hereinafter Mauer, Thinking About Prison].
411.
Huling, supra note 96, at 211 (“[T]hese neighborhoods . . . have already sustained
years of economic and social crises and losses . . . .”).
For a discussion of the economic burden of incarceration in general on the home
communities of prisoners–usually urban communities, see, e.g., Paul Street, Color Blind:
Prisons and the New American Racism, in PRISON NATION, supra note 54, at 30, 35
(“[M]ass incarceration cost[s] black communities untold millions of dollars in potential
economic development, worsening an [already crippled] inner-city political
economy . . . .”); see also Jeffrey Fagan et al., Reciprocal Effects of Crime and
Incarceration in New York City Neighborhoods, 30 FORDHAM URB. L.J. 1551, 1552-53
(2003) (“High rates of incarceration can adversely affect the ability of returning prisoners to
re-enter labor markets, and thus aggravate social and economic disadvantages within areas
where former inmates are concentrated.”).
412.
See supra notes 398-99 and accompanying text.
413.
Hamsher, supra note 15, at 315-16 (“While prisoners do not generally receive any
benefit from the funding that goes to the community just beyond the barbed wire fences,
prisoners add to the population rolls, and therefore the hosting community receives
population-based funding from state and federal governments for their name, but not for
their benefit.”); Ben Trachtenberg, Note, State Sentencing Policy and New Prison
Admissions, 38 U. MICH. J.L. REVORM 479, 526 (2005) (“[M]any government programs dole
out cash based on population, meaning that prisoners bring extra money–money taken away
from their home communities–without enjoying any services from their hosts.”).
414.
See supra note 404 and accompanying text. See also, Judith A. Greene,
Entrepreneurial Corrections: Incarceration As a Business Opportunity, in INVISIBLE
PUNISHMENT, supra note 54, at 95, 95-113 (“[T]he [1980s-era] collapse of rural economies
and a lack of jobs paying a living wage set the stage for public officials and private
entrepreneurs alike to begin pushing prison construction and operation as a leading rural
growth industry.”); Mauer, Disenfranchising Felons Hurts Entire Communities, supra note
382, at 6 (“Communities hard hit by the loss of manufacturing jobs and the decline of family

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because the urban communities lose the political voice of the prisoners who
are exported to the rural prison towns, it is also unlikely that the votingeligible residents of the prisoners’ home communities will be able to
effectively advocate for change415—a situation that is unlikely to improve
and may well get worse unless the Census Bureau modifies its method of
enumeration or states reconsider and rework their use of Census Bureau
data to craft state legislative district maps within their respective states.416
While constitutional challenges to the Census Bureau’s application of the
“usual residence rule” have not been met with success,417 earlier this year,
Congress took the small step of asking the Census Bureau to study the
practice as applied to prisoners and to consider remedies.418 Although the
Census Bureau voiced its reservations about changing its methods,419 the
issue is at least now on the radar screens of both Congress and the
public.420
farms have come to view prisons–often incorrectly, it turns out–as a recession-proof means
of providing jobs.”); SOERING, supra note 92, at 77 (“A full 60% of prisons are now built in
rural counties as local leaders compete for these secure, though low-paying jobs.”).
415.
See Trachtenberg, supra note 413, at 525-26 (“The shift in political power from
(mostly poor) home communities to (more wealthy) host communities decreases the
likelihood of any reforms on this issue.”).
416.
According to one commentator:
Communities suffering from declines in farming, mining, timberwork, and
manufacturing are now begging for prisons to be built in their backyards. . . .
Hundreds of small rural towns and several whole regions have become dependent
on an industry that itself is dependent on the continuation of crime-producing
conditions.

....
[T]he rural prison boom during the decade of the 1990s occurred at a time of
falling crime rates, and experience shows that the federal and state governments
are reluctant to pull the plug on the many interests that now lobby for and feed off
prisons. Allowed to continue, this cycle will have catastrophic consequences for
the health and welfare of individuals, families, and communities in urban and
rural areas, and indeed for the nation.
Huling, supra note 96, at 197, 213 (emphasis added).
417.
Hamsher, supra note 15, at 321 (citing Borough of Bethel Park v. Stans, 449 F.2d
575 (3d Cir. 1971)); cf. Prison-Based Gerrymandering, supra note 401 (discussing a recent
ruling by the Second Circuit calling the practice into question).
418.
Counting Noses in Prison, supra note 404. For a review of legislation introduced
into state assemblies to modify U.S. Census Bureau data that would reallocate prisoners to
their last home address prior to incarceration for the purpose of redistricting of all state
political subdivisions, see Hamsher, supra note 15, at 324-25 & n.194.
419.
See Counting Noses in Prison, supra note 404.
420.
See, e.g., Roberts, supra note 403.
In the spirit of Jurassic 5, supra note 55, some commentators have likened the application of

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In addition to vote dilution and the channeling of funding and resources
away from urban communities, either as a result of vote dilution, the
application of the “usual residence rule” to prisoners, or both, criminal
disenfranchisement can affect voting-eligible individuals and low-income
urban minority communities with high rates of incarceration and/or
concentrated disenfranchisement in another way. As Mauer explains:
While an estimated two percent of the national population is
disenfranchised, the rate for African American men is thirteen percent,
and in some states is well over twenty percent. These high rates affect
this population directly, of course, but they spill over into political
influence of black communities generally. When such high numbers of
black men in many urban neighborhoods are unable to vote, the voting
power of that whole community is impacted in relation to
neighborhoods with relatively low rates of incarceration.
....
[I]n the most restrictive states voter turnouts are lower, particularly
among African Americans, even among persons who are not themselves
disenfranchised as a result of a felony conviction. It will take further
investigation to determine why this is the case, but it may be related to
the communal nature of voting. Voting as a civic duty is a task we
engage in with our families and communities. Family members often
talk of electoral prospects at home, drive to the polls together, and see
their neighbors there. But when substantial numbers of people in a
community are legally unable to participate in this process, it is likely
to dampen enthusiasm and attention among others as well.421

Essentially, voting is a contagious activity—people who are less politically
inclined or even politically apathetic are often drawn into the electoral
the “usual residence rule” to prisoners to the Constitution’s treatment of slaves as threefifths of a person. See, e.g., Phantom Voters, Thanks to the Census, supra note 408 (“The
first Constitution took for granted that enslaved people could not vote, but counted each
slave as three-fifths of a person for the purpose of apportioning representation in
Congress. . . . inflat[ing] the voting power of slaveholders . . . .”); Staples, Why Some
Politicians Need Their Prisons to Stay Full, supra note 366 (“The idea of counting inmates
as voters in the counties that imprison them is particularly repulsive given that inmates are
nearly always stripped of the right to vote. The practice recalls the early United States under
slavery . . . .”).
421.
Mauer, Thinking About Prison, supra note 410, at 615-16 (emphasis added); see
also Uggen & Manza, Democratic Contraction, supra note 39, at 783 (noting that voter
registration and turnout rates are lower in states with “strict felon disenfranchisement
laws”); see generally KING & MAUER, THE VANISHING BLACK ELECTORATE, supra note 15,
at 1 (discussing the reduced likelihood of “a political culture” emerging in communities of
concentrated disenfranchisement).

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process by virtue of the conversation and excitement surrounding an
election. But the reverse is also true: without the discourse surrounding an
election—the exchange of opinions about candidates and ideas about
issues—voting-eligible individuals may well lose their enthusiasm for
participation.
While this is troubling enough, what is potentially more devastating is
the lost intergenerational communal experience—the missed opportunity
for families and neighbors to interact and converse about issues relating to
their shared locality. As a result, the social cohesiveness among residents of
a community may either cease to form or break down, destroying the
informal social control, discussed above in Part II.A, that may be vital to a
community’s safety and ability to ward off crime. As Robert J. Sampson,
Stephen W. Raudenbush, and Felton Earls have found:
At the neighborhood level . . . the willingness of local residents to
intervene for the common good depends in large part on
conditions of mutual trust and solidarity among neighbors.
Indeed, one is unlikely to intervene in a neighborhood context in
which the rules are unclear and people mistrust or fear one
another. It follows that socially cohesive neighborhoods will
prove the most fertile contexts for the realization of informal
social control. In sum, it is the linkage of mutual trust and the
willingness to intervene for the common good that defines the
neighborhood context of collective efficacy. . . . [T]he collective
efficacy of residents is a critical means by which urban
neighborhoods inhibit the occurrence of personal violence,
without regard to the demographic composition of the
population.422
Wacquant paints an even grimmer picture of what can and has transpired in
some segments of urban society:
The depacification of everyday life, shrinking of networks, and
422.
Sampson, Raudenbush & Earls, supra note 157, at 918-24. See also Sampson,
Collective Efficacy and Community Safety, supra note 155, at 108 (“The concept of
neighbourhood collective efficacy captures the link between cohesion . . .and shared
expectations for action.”); see generally Chrisna du Plessis, The Links Between Crime
Prevention and Sustainable Development, 24 OPEN HOUSE INTERNATIONAL 33, 35, 36
(1999) (describing those who have “invested time and money and effort in their
environment” as “more likely to intervene in crime incidents because of stronger communal
ties and feelings of ownership”); John H. Schweitzer, June Woo Kim & Juliette R. Mackin,
The Impact of the Built Environment on Crime and Fear of Crime in Urban Neighborhoods,
6 JOURNAL OF URBAN TECHNOLOGY 66, 68 (1999) (finding that neighborhood “[b]locks with
a strong sense of community had significantly less fear of crime than those without it,” and
describing fear of crime as “more strongly related to a low sense of community than to
actual crime”).

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informalization of survival strategies have combined to give social
relations in the hyperghetto a distinct carceral cast: fear and danger
pervade public space; interpersonal relations are riven with suspicion
and distrust, feeding mutual avoidance and retraction into one’s private
defended space; resort to violence is the prevalent means for upholding
respect, regulating encounters, and controling [sic] territory; and
relations with official authorities are suffused with animosity and
diffidence—patterns familiar to students of social order in the
contemporary US prison.423

While fear, mistrust, avoidance and violence can certainly grow from a
number of sources—sources which may not be overcome through the
communal experience of voting—it is not too great a stretch to suggest that
concentrated disenfranchisement can limit the positive contact between
neighbors that helps build the foundation for informal social control. And
without a doubt, concentrated disenfranchisement may prevent the voting
fever from spreading to future generations. Teenagers on the cusp of
eligibility, witnessing dampened interest by the voting-eligible, may never
catch the fever and may subsequently come to view voting as a
meaningless act, a civic chore, or an antiquated method of bringing about
change. As Chris Giunchigliani, a Nevada Democratic assemblywoman
and former teacher remarks,
If you want people to come back into society, let them earn their rights
back so they can participate in society. As a teacher, [I know that] you
teach something, you reenforce [sic] it. If you have a family member
who’s disenfranchised, the spouse says ‘You can’t vote. I’m pissed off.
I’m not going to vote either.’ The kids see this. We’re losing another
generation.424

To conclude this subsection on the impact of criminal
disenfranchisement on neighborhoods and communities, when an offender
leaves his community for prison, his community loses a potential voter and
a person for census purposes and subsequently loses funding for many
desperately needed social services. When the offender returns to his
community after prison—and not only are most prisoners eventually
released,425 but eventually return to their home communities426—the
423.
424.
425.
426.

Wacquant, supra note 51, at 107 (citations omitted).
ABRAMSKY, supra note 37, at 57-58.
See sources cited supra note 103 and accompanying text.
Hamsher, supra note 15, at 316 (“The vast majority of released inmates return to
their home county after incarceration.”); Tucker & Cadora, supra note 60, at 2 (“When they
return—disproportionately to low-income neighborhoods of color—they will find
neighborhoods weakened by their absence and burdened by their return.”); see also
Wacquant, supra note 51, at 114 (“Today’s prison further resembles the ghetto for the

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community regains the individual for census purposes, but he still cannot
help his community affect change through its political voice.
Disenfranchised, disillusioned and detached, he may be unlikely to
encourage his family, friends and neighbors who can vote from
participating in the electoral process, thereby further diminishing the
political power of the community. Arguably, this loss of political voice
inhibits the community from pushing for and influencing socio-economic
policies (such as a living wage),427 not to mention other criminal justice
laws and policies,428 including those governing released prisoners,429
which could make offending and re-offending less of an appealing and
seemingly necessary option.430 Furthermore, and from an environmental
perspective (which this Article now turns to in Part III), criminal
disenfranchisement prevents poor and minority communities—groups often
affected
by
environmental
degradation—indeed,
groups
that
disproportionately bear environmental burdens—“from working within
their political process to secure the level of environmental protection
necessary to protect their health and well-being.”431
III. FOUR ARGUMENTS FOR CRIMINAL DISENFRANCHISEMENT AS AN
“ENVIRONMENTAL” ISSUE
“In both the columns of statistics and everyday experience, there is
inescapable evidence that the massive national effort to restore the

simple reason that an overwhelming majority of its occupants originate from the racialized
core of the country’s major cities, and returns there upon release.”).
427.
See generally Jon Gertner, What Is a Living Wage?, N.Y. TIMES, Jan. 15, 2006, §6
(Magazine), at 38 (discussing how a living wage can reduce the need for temporary
assistance).
428.
As Ryan S. King and Marc Mauer of The Sentencing Project state:
Nationally, the vast increase in incarcerated drug offenders, fueled in large part by
a heavy emphasis on law enforcement patterns and punitive sentencing policies,
has had a highly skewed impact on communities of color. Many political leaders
in these communities are concerned about the problem of drug abuse, but have
called for a more balanced approach that emphasizes prevention and treatment.
Yet, because there are fewer voting residents in these neighborhoods–due in
significant part to drug policies–these voices have increasingly less political
influence.
KING & MAUER, THE VANISHING BLACK ELECTORATE, supra note 15, at 15.
429.
Fagan, This Will Hurt Me More Than It Hurts You, supra note 177, at 38 (“Not
only does disenfranchisement disproportionately affect young African American males, it
severely reduces their ability to influence these policies.”).
430.
See sources cited supra notes 128, 387.
431.
DAVID HUNTER, JAMES SALZMAN & DURWOOD ZAELKE, INTERNATIONAL
ENVIRONMENTAL LAW AND POLICY 1281 (2d ed. 2002).

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quality of the environment has failed.”432

In the winter of 1990, a group of non-Anglo activists and representatives
of community-based groups sent a letter to each of the ten largest national
environmental organizations (known as the “Group of Ten”)433 decrying
the “racism and the ‘whiteness’ of the environmental movement.”434 The
activists charged the mainstream environmental organizations (MEOs) with
discrimination in their hiring and promoting practices and asserted that the
mainstream groups had turned a blind eye to the concerns of poor and/or
minority communities—communities that were frequently and
disproportionately affected by environmental hazards and negative land
uses.435 Many of the MEOs acknowledged these criticisms. Frederic D.
Krupp, President of the Environmental Defense Fund commented: “The
truth is that environmental groups have done a miserable job of reaching
out to minorities,”436 although he also attempted to shift part of the burden
to “cause oriented” members of minorities, whom he claimed tended to be
attracted to issues such as discrimination and poverty, rather than
environmental issues.437 The late Jay D. Hair, then-President of the
National Wildlife Federation proclaimed: “‘I don’t think anybody is as
aware of the whiteness of the green movement as those of us who are

432.

SHABECOFF, supra note 2, at 267 (quoting BARRY COMMONER, MAKING PEACE

WITH THE PLANET 38 (1990)).

433.
GOTTLIEB, supra note 34, at 260. The “Group of Ten” has sometimes been
referred to more pejoratively as the “Big Ten.” See Helen M. Ingram, David H. Colnic &
Dean E. Mann, Interest Groups and Environmental Policy, in, ENVIRONMENTAL POLITICS &
POLICY, supra note 1, at 115, 127; JAMES P. LESTER, DAVID W. ALLEN & KELLY M. HILL,
ENVIRONMENTAL INJUSTICE IN THE UNITED STATES: MYTHS AND REALITIES 44-45 (2001).
Regardless of the preferred moniker, the ten organizations were: the Environmental Defense
Fund, Environmental Policy Institute, Friends of the Earth, Izaak Walton League, National
Audubon Society, National Parks Conservation Association, National Wildlife Federation,
Natural Resources Defense Council, Sierra Club, and the Wilderness Society. Carolyn
Merchant, RADICAL ECOLOGY: THE SEARCH FOR A LIVABLE WORLD 159-60 (1992).
434.
GOTTLIEB, supra note 34, at 260.
435.
Id.; see also Nicholas Freudenberg & Carol Steinsapir, Not in Our Backyards: The
Grassroots Environmental Movement, in AMERICAN ENVIRONMENTALISM, supra note 4, at
27, 32 (“The primary constituency of the national organizations is white, middle-class
Americans; their leaders and staff are almost exclusively white.”); Philip Shabecoff,
Environmental Groups Told They Are Racists in Hiring, N.Y. TIMES, Feb. 1, 1990, at A20.
A second letter, signed by more than 100 activists and representatives of
community-based groups, was sent two months later, in March 1990, further detailing the
ways in which the MEOs had neglected the poor and minority communities. See GOTTLIEB,
supra note 34, at 260; LESTER ET AL., supra note 433, at 44-45.
436.
Shabecoff, supra note 435 (quoting Frederic D. Krupp, Executive Director,
Environmental Defense Fund).
437.
Id.

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trying to do something about it.’”438
Much has changed in the last sixteen years. Recognition of the
disproportionate impact of environmental problems on poor and minority
neighborhoods has grown and many MEOs have attempted to integrate
environmental justice issues into their organizations’ agendas.439 But while
the divide between mainstream environmentalism and environmental
justice’s struggle for environmental equity and civil rights in minority
communities may have lessened,440 the “white green movement,” as

438.
Id. (quoting Jay D. Hair, then-President of the National Wildlife Federation); see
also Robert D. Bullard & Beverly H. Wright, The Quest for Environmental Equity:
Mobilizing the African-American Community for Social Change, in AMERICAN
ENVIRONMENTALISM, supra note 4, at 39, 42 (“Mainstream environmental
organizations . . . . have not had much success in attracting poor and working-class persons
or the large urban underclass (which is burdened with both pollution and poverty) in the
nation’s central cities or the rural southern blackbelt.” (citations omitted)).
439.
See, e.g., Kaswan, supra note 4, at 264-65 (“Many mainstream environmental
groups are now actively considering the environmental justice implications of their
environmental advocacy and assisting communities of color in their challenges to adverse
environmental conditions. . . .”).
Numerous definitions and descriptions have been offered for the concept
“environmental justice.” A specific characterization is not necessary for the purposes of this
Article, nor is a thorough examination of the different meanings. For purely illustrative
purposes, consider the following academic explanations of the concept: Lester, et al.,
distinguish between “environmental equity,” “environmental racism,” and “environmental
justice.” For these authors, “‘[e]nvironmental equity’ refers to the idea that potential
pollution sources, such as LULUs [locally unwanted land uses], and their related health
effects should not be disproportionately distributed among specific segments of the
population, namely, the poor and minorities.” LESTER ET AL., supra note 433, at 21.
“Environmental racism,” on the other hand, “is a broader label used for any policy, practice,
or directive that differentially affects the environment of individuals, groups, or
communities based on race.” Id. “Environmental justice,” encompasses both. Id. Kaswan,
supra note 4, at 228 n.21-22, offers another set of definitions for “environmental equity,”
“environmental racism,” “environmental discrimination,” and “environmental justice.”
440.
See generally Kaswan, supra note 4, at 265 (noting the “sea change” regarding the
interaction of MEOs and grassroots groups, but claiming that “the distance between the
mainstream environmental establishment and the grassroots civil rights community has not
yet been bridged”); Michael McCloskey, Twenty Years of Change in the Environmental
Movement: An Insider’s View, in AMERICAN ENVIRONMENTALISM, supra note 4, at 77, 85
(observing that “[a]s the 1980s closed, even the long-troubled relations between the
environmental movement and the Civil Rights movement began to show signs of changing
for the better,” but bemoaning “the absence of healthy interaction between the more radical
groups and the mainstream groups, or even between the pragmatic reformers and the
accommodators”); cf. Email from Peggy M. Shepard, Executive Director, West Harlem
Environmental Action, Inc., to author (July 24, 2006, 17:24:27 EST) (on file with author)
(noting the difference in budgets between environmental justice groups and mainstream
environmental organizations and observing that “[t]he gap has not narrowed but there are

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Shellenberger and Nordhaus bemoan, continues to place primacy on a
narrowly defined class of environmental issues and to elevate a similarly
limited assortment of solutions to those problems.441 While this stagnancy
should be reason for mainstream environmental groups to step up their
efforts to truly make civil rights and environmental rights “different links in
the same movement,”442 with academic claims that environmental law and
policy is already muddled443 and the environmental movement’s
projections of catastrophe for the future of the planet,444 one must ask
whether adding the issue of criminal disenfranchisement to the
“environmental” agenda is either prudent or plausible. As Dan Becker,
Global Warming Director of the Sierra Club has stated, “We need to
remember that we’re the environmental movement and that our job is to
protect the environment. If we stray from that, we risk losing our focus, and
there’s no one else to protect the environment if we don’t do it. We’re not a
union or the Labor Department. Our job is to protect the environment, not
to create an industrial policy for the United States. That doesn’t mean we
don’t care about protecting workers.”445 One can readily imagine Becker
asserting, “The environmental movement’s job is to protect the
environment, not create criminal justice policy, sentencing policy, or
election law for the United States. That doesn’t mean we don’t care about
protecting (the rights of) offenders and ex-offenders.”
This Part asserts that despite Becker’s concerns, with global warming
moving to the top of the environmental problem list,446 this is actually an
slightly larger EJ groups than in the past”).
441.
Shellenberger & Nordhaus, supra note 3.
442.
GOTTLIEB, supra note 34, at 267 (quoting Cora Tucker, an Africa-American civil
rights and environmental justice advocate).
443.
See, e.g., David A. Westbrook, Liberal Environmental Jurisprudence, 27 U.C.
DAVIS L. REV. 619, 621 (1994) (calling American environmental law “complex, messy, and
disorganized”).
444.
According to the political scientists John S. Dryzek and James P. Lester, “models
of doom” and “dystopia of ecological collapse” tend to move in cycles. They claim that such
prognostications were both popular and plausible in the 1970s, but much more remote in the
1990s. Dryzek & Lester, supra note 1 at 343. As we venture into a new century, it would
seem that predictions of environmental collapse are again en vogue.
445.
Shellenberger & Nordhaus, supra note 3. Note, however, that in June 2006, the
United Steelworkers and the Sierra Club announced the formation of an alliance, entitled the
“Blue/Green Alliance,” to promote energy independence and fight global warming and toxic
pollutants. See Steven Greenhouse, National Briefing: Labor: Steelworkers and Sierra Club
Unite, N.Y. TIMES, June 8, 2006, at A21. For a thorough discussion of the relationship
between labor and the environmental movement, see BRIAN K. OBACH, LABOR AND THE
ENVIRONMENTAL MOVEMENT: THE QUEST FOR COMMON GROUND (2004).
446.
See Shellenberger & Nordhaus, supra note 3 (calling global warming “the world’s
most serious ecological crisis”); see generally John C. Derbach, National Governance, in

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ideal time for MEOs to join forces with social justice groups interested in
the issue of criminal disenfranchisement. This Part presents four arguments
in support of this union. First, Section A takes a deeper look at the
relationship of MEOs to grassroots social justice groups and argues that
public participation is a core principle of environmental justice, a key
component to many existing environmental laws, and integral to the
concept of sustainable development. Next, Section B returns to the notion
expressed in Part II.B that disenfranchisement affects recidivism, and, more
generally, that voting affects crime. It then explores both whether crime
adversely impacts the environment and whether certain environmental
characteristics increase the likelihood of crime. Section B posits that if both
exist, then criminal disenfranchisement laws and policies should not lie
outside the scope of environmental law. Section C revisits the discussion in
Part II.B regarding the impact of criminal disenfranchisement on elections,
examining presidential appointments to federal agencies and judgeships
and the significance of these appointments for the enforcement and
interpretation of environmental law. Finally, Section D argues that a
broader electorate will contribute to a richer sense of human-environment
relations a more elaborate typology of environmental values and
worldviews. While there is an inherent risk in such a proposition, i.e., that
more voters will lead to greater divisiveness within and between
organizations, this Section urges MEOs to take such a risk. Doing so will
expand ecological knowledge on both the local and global levels, increase
the participation of citizens, increase the publicity and exposure of an
environmental problem to a wider audience (including policymakers), and
help reduce environmental wrongs by adding to the formulation of
solutions, as well as to the means and methods of implementing them.447
A. Environmental Movements, Groups and Coalitions and the Role of
Public Participation in Environmental Decision-Making
To better understand the context of Becker’s comments and the degree
to which they may or may not be supported by other members of the
mainstream environmental movement, this Section begins with an
STUMBLING TOWARD SUSTAINABILITY, supra note 19, at 723, 740 (stating that if the United
States were to “identify those areas involving the greatest risks to the country from
unsustainable development[,] [c]limate change and loss of biodiversity would likely be
priorities under that approach”).
447.
See Heseltine, supra note 19, at 44 (“At the heart of the environmental challenge
on a great range of issues–whether they are global, national, or local–is not so much the
identification of solutions as the finding of ways to implement them.”); see also Costain &
Lester, supra note 4, at 15 (“[T]he emphasis in environmental policy making has evolved
from a concern about adding environmental issues to the agenda to environmental policy
implementation and evaluation.”).

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overview of the relationship between the environmental movement and
other social justice movements, such as the civil rights and anti-Vietnam
War movements. It next turns to the relationship between the mainstream
environmental movement and the environmental justice movement,
highlighting both their points of agreement and disagreement. This Section
then emphasizes the shared value of participation in the environmental
decision-making process and notes the close alignment between
environmental justice groups and other social justice groups. It concludes
by urging acceptance of criminal disenfranchisement as an environmental
issue and recommends the formation of a coalition between MEOs and
social justice groups working on the issue of disenfranchisement in order to
better foster participation in the (environmental) political process.
As noted in Part I, the “first wave” of the environmental movement
began at the end of the 19th century, where the focus was on the
conservation and preservation of pristine areas.448 In the 1960s, with the
publication of Rachel Carson’s Silent Spring, as well as writings by Barry
Commoner and Paul R. Ehrlich,449 the “second wave” of the environmental
movement emerged, with pollution joining natural resource protection on
the agenda.450 The 1960s might have seemed like a perfect time for the
environmental movement to embrace social justice issues as part of its
mission, given the popularity of the anti-establishment ethos of the civil
rights and anti-war movements.451 But the environmental movement
neither adopted a broader agenda (beyond pollution prevention and control)
nor expressed much interest in joint ventures with the social justice
movements of the time.452 The burden, however, does not fall entirely on
the shoulders of the environmental movement. As Professor Alice Kaswan
explains, civil rights and other social justice groups did not reach out to the
448.
449.

See sources cited supra note 4.
See, e.g., BARRY COMMONER, SCIENCE AND SURVIVAL (1970); BARRY COMMONER,
THE CLOSING CIRLE (1972); PAUL R. EHRLICH, THE POPULATION BOMB (2d ed. 1971); see
also CHARLES REICH, THE GREENING OF AMERICA (1970); STEWART UDALL, THE QUIET
CRISIS (1963).
450.
Riley E. Dunlap & Angela G. Mertig, The Evolution of the U.S. Environmental
Movement from 1970 to 1990: An Overview, in AMERICAN ENVIRONMENTALISM, supra note
4, at 1, 2; Riley E. Dunlap, Public Opinion and Environmental Policy, in ENVIRONMENTAL
POLITICS & POLICY, supra note 1, at 63, 71; Freudenberg & Steinsapir, supra note 435, at
28; Kaswan, supra note 4, at 259.
451.
See Cole, supra note 4, at 635 n.46; Kaswan, supra note 4, at 259.
452.
Kaswan, supra note 4, at 259-60. Note, however, that in the 1980s, a number of
grassroots activists drew from the civil rights, anti-Vietnam, and women’s movements to
“explore[] various forms of direct action–civil disobedience, guerilla theater, monkeywrenching, nonviolent demonstrations, and anarchism–in their efforts to open the minds and
hearts of their fellow citizens to the plight of the planet under the domination of industrial
society.” Devall, supra note 4, at 56.

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environmental movement either:
Many civil rights leaders remained skeptical of the new environmental
activists. . . . [They] were concerned that the burst of attention to the
environment would distract the nation from the pressing problems of
poverty that had just begun to receive attention through the War on
Poverty. They feared that the impetus to address environmental
problems might shift the nation’s priorities–and resources–away from
social justice.
Environmentalists did little to allay the civil rights leaders’ concerns.
Some environmentalists contributed to the skepticism by arguing that
the environment was the most pressing public cause, thereby suggesting
that other public issues, such as poverty, had a lower priority.453

Aside from the respective concerns over prioritization, the movements soon
differed on strategical grounds, with the civil rights and anti-war
movements favoring broad mobilization and the environmental movement
opting for the trident of “litigation, lobbying, and technical evaluation.”454
With the passage of most of the major federal environmental laws in the
1970s, of which the mainstream environmental movement played a crucial
role, the environmental movement became even less enthused about
incorporating either the tools455 or causes of civil rights and social justice
groups.456
In the early 1980s, the environmental justice movement burst onto the
scene with the mobilization of the predominantly African American
453.
Kaswan, supra note 4, at 259-60 (citations omitted); see generally Dunlap &
Mertig, supra note 450, at 6 (describing the emergence of grassroots environmentalism in
minority communities in the 1980s and 1990s as particularly important, since those
communities “traditionally have been wary of the environmental movement, fearing that it
deflects attention from social justice concerns”).
454.
Cole, supra note 4, at 635 n.46. This is not to suggest that all MEOs opt for these
tools and reject all others, such as lobbying, electioneering, coalition building, and public
mobilization. See Ingram, Colnic & Mann, supra note 433, at 126-27; see also Dryzek &
Lester, supra note 1 at 328-29 (comparing the “environmentalist center,” such as the Sierra
Club and NRDC, which favor “conventional channels of political action,” with more radical
groups such as Earth First! and Greenpeace, which prefer direct action).
455.
As Cole, writing in the early 1990s, explains: “Having designed and helped
implement most of the nation’s environmental laws, the second wave has spent the past
twenty-five years in court litigating. Lawsuits are now the primary, and sometimes only,
strategy employed by mainstream groups.” Cole, supra note 4, at 636.
456.
See GOTTLIEB, supra note 34, at 253-60 (discussing the mainstream environmental
movement’s detachment from social justice themes and people-of-color movements, and
providing an overview of environmental groups’ attitudes towards population and
immigration in the 1970s).

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Warren County, North Carolina against the selection of the county as the
burial site for soil contaminated with toxic PCBs.457 Although some trace
the environmental justice movement as far back as the late 1960s,458 the
Warren County protest constituted “[a] formal melding of the civil rights
movement and its earlier, inner-city environmental movement,”459 and the
first time that law and policymakers across the country took notice.460 For
example, in 1990, the Environmental Protection Agency created the
Environmental Equity Workgroup, charged with the duty of studying the
distributional issues raised by environmental hazards and governmental
policies.461 In February 1994, President Clinton issued Executive Order
12,898, instructing all federal agencies to conduct their programs, policies,
and activities in a way that addresses the human health and environmental
effects on minority and low-income populations and promotes
environmental justice.462
This acceptance of environmental justice on the national policy agenda
was not met with whole-hearted acceptance by mainstream environmental
groups, however, as evidenced by the letters from the grassroots
457.
Alison E. Hickey, Note, Shifting the Burden: Potential Applicability of Bush v.
Gore to Hazardous Waste Facility Siting, 33 B.C. ENVTL. AFF. L. REV. 661, 664 (2006); see
also R. Bullard & B. Wright, supra note 438, at 41 (“Although the protests were
unsuccessful in halting the landfill construction, they marked the first time that blacks
mobilized a nationally broad-based group to protest environmental inequities and the first
time that demonstrators had been sent to jail for protesting against a hazardous waste
landfill.” (citations omitted)).
458.
See, e.g., LESTER ET AL., supra note 433, at 25 (treating protests against the siting
of a city-owned garbage dump in a largely African-American community in Houston in
1967 and the Martin Luther King Jr.-assisted protest by Memphis garbage workers against
unequal pay and unsafe working conditions as “early stages of the environmental justice
movement”).
For an historical perspective on the merging of environmentalism and civil rights activism,
see generally ROBERT D. BULLARD, CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM
THE GRASSROOTS (1993); ROBERT D. BULLARD, DUMPING IN DIXIE: RACE, CLASS AND
ENVIRONMENTAL QUALITY (3d ed. 2000); THE QUEST FOR ENVIRONMENTAL JUSTICE: HUMAN
RIGHTS AND THE POLITICS OF POLLUTION (Robert D. Bullard ed., 2005); LUKE W. COLE &
SHEILA R. FOSTER, FROM THE GROUND UP: ENVIRONMENTAL RACISM AND THE RISE OF THE
ENVIRONMENTAL JUSTICE MOVEMENT (2001); Walter Willard, Environmental Racism: The
Merging of Civil Rights and Environmental Activism, 19 S.U. L. REV. 77 (1992).
459.
LESTER ET AL., supra note 433, at 27. Prior to the Warren County protest, the
“inner-city environmental movement” focused on getting the larger environmental
movement to address human health concerns. Id. at 51.
460.
Id. at 51. For a discussion of recommended or introduced environmental justice
legislation by the 102nd and 103rd Congresses, see id. at 36-40.
461.
Kaswan, supra note 4, at 226. For criticism by environmental groups of EPA’s
efforts to address environmental justice, see LESTER ET AL., supra note 433, at 45-47.
462.
See LESTER ET AL., supra note 433, at 40-41.

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environmental organizations to the Group of Ten, discussed above.
Although the schism between MEOs and grassroots environmental justice
groups may have narrowed in the years since the letters, a significant gap,
as also noted above, still remains. A number of commentators have
speculated on the reasons for this phenomenon. For example, for political
scientists James P. Lester, David W. Allen, and Kelly M. Hill writing in
early 2000:
The political climate in Congress . . . presents a barrier to the
advancement of environmental justice concerns. The conservative tone
of Congress harkens back to the decentralizing agenda of the Reagan
era. State power is increasing while federal budgets are decreasing. As
seen during the Reagan era, this led to a polarization by the civil rights
and environmental movements in order to protect their policy
bargaining positions and retain past policy gains. During the 1980s, this
led to a disappearance of environmental justice from the policy stream;
it may do the same thing, at the federal level, after 2000.463

Although the federal deficit has swelled since President George W. Bush
has taken office, this growth has not been accompanied by an increase in
social service spending. Coupled with the conservative tone of Congress
that the authors speak of, this Author would contend that the retreat-andprotect prediction has indeed come true.464
Political climate aside, other commentators seem to suggest that this
might be as close as they get. For example, Luke Cole, writing in the early
1990s, maintains that three characteristics—motives, background and
perspective—separated the MEOs from the grassroots environmental
justice groups. With respect to the first—motives—Cole asserts that
“mainstream environmentalists are generally motivated by aesthetic,
recreational and biological considerations (or, even, by concern for career
opportunities or organizational stability)”465—an idea discussed in the
previous paragraph and explored in greater detail below. Grassroots
activists, on the other hand:
[A]re often fighting for their health and homes. [They] have an
immediate and material stake in solving the environmental problems
they confront: the hazards they face affect the communities where they
live, and may be sickening or even killing them or their children.
Because grassroots activists have such a personal stake in the outcome
of particular environmental battles, they are often willing to explore a
463.
464.

LESTER ET AL., supra note 433, at 51.
For a broader discussion of the tendency of organizations to protect policy
bargaining positions and retain past policy gains in trying political times, see infra Part
III.C.
465.
Cole, supra note 4, at 639 (footnotes omitted).

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wider range of strategies than mainstream environmentalists.466

With respect to the second and third characteristics—background and
perspective—Cole contrasts the grassroots environmental justice groups,
which are frequently comprised of poor or people of color,467 with the
mainstream environmental movement, which is “overwhelmingly white
and middle class in its staff, membership, and perspective.”468 As Professor
Kaswan adds,
[T]he mainstream environmental movement has become highly
professionalized. Most of the work of the movement is accomplished by
specialists, be they lawyers or scientists. Environmentalists frequently
interact with government agencies, or handle technically complicated
litigation. The primary purpose of the membership is to raise funds and
generate broad political support for the environmental groups’
initiatives.469

Whereas the mainstream environmental movement often seeks to remedy
environmental wrongs in court,470 low-income people of color may have
had negative experiences with the legal system and thus seek to achieve
their goals through other means.471 As Cole explicates:
Mainstream environmentalists see pollution as the failure of
government and industry—if the environmentalists could only shape up
the few bad apples, our environment would be protected. But grassroots
activists come to view pollution as the success of government and
industry, success at industry’s primary objective: maximizing profits by
externalizing environmental costs. Pollution of our air, land, and water
that is literally killing people is often not in violation of environmental

466.
467.

Id. at 639-40 (footnotes omitted).
Id. at 640; see also Dunlap & Mertig, supra note 450, at 6 (noting that local
grassroots organizations are often able to draw members from blue-collar and minorities).
For a discussion of the difference between “environmental racism”—the
disproportionate siting of environmental hazards in minority communities—and
“environmental classicism”—the disproportionate siting of environmental hazards in lowincome communities that may or may not be communities of color, see LESTER ET AL., supra
note 433, at 1, 9-10.
468.
Cole, supra note 4, at 640 (citations omitted); Kaswan, supra note 4, at 266 (“The
typical member of the environmental movement is described as white, well-educated, and
middle- to upper-class. The same is true of the leadership of most mainstream
environmental groups.”).
469.
Kaswan, supra note 4, at 267.
470.
See sources cited supra note 454 and accompanying text; see also Ingram, Colnic
& Mann, supra note 433, at 119 (noting the “second wave’s” use of litigation as an
instrument of choice).
471.
Cole, supra note 4, at 640-41.

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laws. Grassroots environmentalists, realizing this, have a far more
radical and systemic view of the changes needed to eliminate pollution.
These widely divergent perceptions lead to the inevitable tension
between the [MEOs and the grassroots environmental justice groups]:
mainstream environmentalists are uncomfortable with [grassroots]
environmentalists’ challenge to the [mainstream’s] system while
grassroots environmentalists are distrustful of mainstream groups’
comfort in working within the system, a system which grassroots
environmentalists recognize as responsible for the degradation of their
communities.472

Looking more broadly, political scientists Helen M. Ingram, David H.
Colnic, and Dean E. Mann suggest that
[T]he relationships among environmental interest groups have failed to
coalesce into a unified environmental movement or, perhaps,
environmentalism has devolved from such a movement in that it “is no
longer a single, identifiable entity.” Rather than comprising a tightly
knit environmental movement, the term “environmental community”
better describes the diverse collection of interest groups loosely
connected to one another by virtue of their concern for some aspect of
environmental protection.473

Although this Author would certainly agree that the “environmental
community” encompasses a “diverse collection of interest groups,” just as
this Author questions Shellenberger and Nordhaus’ assertion that
“environmentalism” needs to die and be reborn, this Author takes umbrage
with the negative implications of “failure to coalesce,” the tepid
connotation of “diversity,” and the gloomy description of
environmentalism as having “devolved.” Instead, one should be both
troubled by the pervasive environmental problems that have required the
formation of such diverse groups and pleased that such groups have
emerged to combat these problems—a point which Ingram, Colnic and
Mann themselves acknowledge:
Th[e] lack of cohesion within the environmental community has both
negative and positive consequences. On the negative side, without a
clear agenda and unified lobbying force the ability to influence
Congress and the design of legislation may be somewhat diminished.
Likewise, a more unified movement would probably have a better
chance to improve implementation of environmental laws. On the other
hand, the diversity within the environmental community increases the
ability of citizens to involve themselves in groups dedicated to issues
472.
473.

Cole, supra note 4, at 643-44 (citations omitted).
Ingram, Colnic & Mann, supra note 433, at 117 (citation omitted).

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important to themselves. Fragmentation and diversity allow for several
items to be placed on the environmental agenda at once. Given the
potentially destructive capabilities of unaddressed environmental
threats, focusing on multiple issues simultaneously may be extremely
important.474

This Article will explore the issue of diversity in greater detail in Part III.D.
For now, it is sufficient to propose that the materialization of diverse
groups is a positive development—indeed, many environmental problems
need to be addressed on the local, state, and regional level, rather than on
the national stage,475 and require significant numbers of engaged citizens.
But there is also room for greater cohesiveness within both the MEOs and
grassroots environmental groups and between them – especially with
respect to the design and implementation of environmental laws. Greater
cohesiveness does not mean that all the players adopt the same set of
priorities or agree upon the same methods of achieving their goals. But
neither should we accept Cole’s suggestion that motives, background, and
perspective will perpetually separate the MEOs from the grassroots
environmental justice groups.
As to the issue of “motives,” MEOs and grassroots environmental
groups have frequently differed with respect to both their prioritization of
environmental issues and their reasons for such prioritization. The problem
of global warming, however, may well help narrow this gap.476 While
MEOs may view global warming as a threat for “aesthetic, recreational and
biological” reasons, and grassroots environmental groups may have
concern for global warming’s potentially devastating effect on human
health,477 global warming is an environmental problem that affects all
474.
475.

Ingram, Colnic & Mann, supra note 433, at 140.
See, e.g., Gerald B. Thomas, The Politics of Hope: An Eclectic Vision of the
Future, in ENVIRONMENTAL POLITICS & POLICY, supra note 1, at 347, 354 [hereinafter
Thomas, The Politics of Hope] (“Politics, as it is currently practiced in most modern
societies, is too centralized to be responsive to the needs of specific places. . . . The general
idea, then, is to transfer decision making to a level where the special needs of specific areas
will be considered.”).
476.
Cole notes that “pollution will not be stopped by people who are not being
polluted. If environmental degradation is stopped, it will be stopped by its victims. They can
only stop it if they work at it together.” Cole, supra note 4, at 649. If Cole is correct, or even
partially correct, then global warming’s indiscriminate impact may result in potential union
of groups with different motives, backgrounds, and perspectives. See, e.g., Claudia H.
Deutsch, The New Black; Companies and Critics Try Collaboration, N.Y. TIMES, May 17,
2006, at G1 (“The slow pace of regulatory change has actually helped foster
partnerships. . . . Environmentalists say they . . . no longer expect Washington to tackle
global warming, for example, and they know they cannot sue companies for violating laws
that do not exist. So they have to become more cooperative.”).
477.
See Brisman, The Aesthetics of Wind Energy Systems, supra note 17, at 15-21.

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people, regardless of race, class, gender, or educational attainment.478 This
is not to suggest that everyone will be affected in the same way by global
warming, since different regions will experience different changes than
others, but it is a unique problem in that it crosses geographical, social and
economic boundaries.479
With respect to “background and perspective,” this Author would agree
with Cole’s analysis and would note that the divergent perceptions of the
cause and method for addressing numerous environmental problems are
unfortunate for many reasons. Most notably, the mainstream environmental
movement’s failure to see connections between environmental degradation
and poverty, crime, and joblessness, discussed further in Part III.B, has
resulted in the narrow conceptions of “environment,” “environmental
issues,” and “environmental problems,” and the similarly limited solutions
that Shellenberger and Nordhaus assert are hindering real progress on many
ecological crises. This tunnel vision or “group think,”480 does not afflict
grassroots activists. Because grassroots activists literally have their lives at
stake, “they are often willing to explore a wider range of strategies than
mainstream environmentalists.”481 Their distrust of the legal system, on the
other hand, while understandable and even justified at times, is no less
unfortunate than the faults attributed to the MEOs. As this Article
discussed in depth in Part II and as Cole also notes:
Poor people and people of color . . . have a deeper skepticism [than
wealthier white people] about the law’s potential, because in the United
States the law has historically been used to systematically oppress
people of color and poor people: the law has stripped people of their
land, denied them the right to vote, and rejected their very personhood.
Thus, poor people and people of color generally do not trust the law,
even when they use its institutions.482

This lack of faith in the legal system is regrettable: political participation is
478.
479.

Id. at 16 n.30.
Id.; see generally Cole, supra note 4, at 633 (“While environmental problems
disproportionately burden poor people and people of color, they cut across race and class
boundaries, and thus create the potential for building multi-racial, multi-class and
multicultural movements to address structural problems in society.”). Note that not every
region will experience global warming equally either. For example, while wealthier
countries may account for higher greenhouse gas emissions than poorer countries, Brisman,
The Aesthetics of Wind Energy Systems, supra note 17, at 19 n.38, and while both rich and
poor countries and individuals may feel the impact of global warming, the poor may be less
prepared and less able to adapt and thus more likely to suffer from a hotter climate than the
rich. See id. at 16 n.30.
480.
Shellenberger and Nordhaus, supra note 3.
481.
Cole, supra note 4, at 640.
482.
Id. at 647-48 (footnoes omitted).

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a core principle of environmental justice and a key component to many
existing environmental laws, as well as integral to the concept of
sustainable development. In fact, Ingram, Colnic, and Mann assert that with
the exception of organizations that engage in direct action, such as Earth
First!, “the strategies of most environmental groups can best be understood
as attempts to gain access to governmental decision making.”483
To illustrate, the First National People of Color Environmental
Leadership Summit in October 1991—one of the defining moments in the
struggle to bring the inequitable distribution of environmental hazards to a
broader audience—leaders of African American, Latino American, Asian
Pacific American and Native American communities convened and
adopted a resolution setting forth seventeen Principles of Environmental
Justice.484 The fifth principle states: “Environmental justice affirms the
fundamental right to political, economic, cultural and environmental selfdetermination of all peoples.”485 The seventh principle states:
“Environmental justice demands the right to participate as equal partners at
every level of decision-making including needs assessment, planning,
implementation, enforcement and evaluation.”486 Yet despite these core
principles, African American, Hispanic, and poorer communities remain
grossly under-represented in the political process—a point upon which
many agree. Jeremy Travis, Senior Fellow at the Urban Institute, proclaims
that “[p]oor people, minorities, young people, and felons are not well
represented in the legislative branches of government that have historically
reflected majoritarian wishes.”487 Cole attributes poor and/or minority
communities’ disproportionate exposure to environmental hazards to a
political process that has historically excluded them.488 Lester and his
colleagues link the lack of advocates and lobbyists from low-income and/or
483.
Ingram, Colnic & Mann, supra note 433, at 126. For fluctuations in degree of
access by nongovernmental environmental organizations to governmental decision-making,
see sources cited infra notes 616-618, 636 and accompanying text.
484.
Willard, supra note 458, at 88 n.49.
485.
Id. See also LESTER ET AL., supra note 433, at 31-32.
486.
Willard, supra note 458, at 88 n.49. See generally Scott Kuhn, Expanding Public
Participation Is Essential to Environmental Justice and the Democratic Decisionmaking
Process, 25 ECOLOGY L.Q. 647, 658 (1999) (“Increasing public participation is a key to
achieving environmental justice. Environmental justice necessarily includes active and
meaningful public participation. . . . To ensure and expand the role of the public in
environmental decisionmaking, environmental justice advocates and supporters will have to
increase their public education, community organizing, and legal advocacy.”).
487.
Travis, supra note 59, at 32-33.
488.
Cole, supra note 4, at 646; see generally Kuhn, supra note 486, at 649-50
(discussing the historic and systematic exclusion of women and people of color from
participation in decisionmaking, arguing that “[e]nsuring meaningful public participation
must begin with an understanding of past alienation, discrimination, and exclusion”).

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communities of color at the national level to the siting of noxious
facilities.489
Public access and participation is likewise a fundamental component of a
number of U.S. environmental laws, with many such statutes leaving a
great deal of discretion to agencies in both setting standards and in
enforcing them, and with environmentalists, citizens’ groups, and other
interested parties having been granted standing to participate in
administrative proceedings.490 For example, the National Environmental
Policy Act (NEPA) requires agencies to involve the public throughout the
implementation of NEPA procedures.491 This includes participation in the
preparation of an environmental assessment (EA) and in the determination
of whether an environmental impact statement (EIS) is necessary, as well
as opportunities to comment on draft EIS and underlying comments.492
Agencies must then take these comments into consideration in issuing a
final EIS and must respond to them; failure to do so may constitute
reversible error and invalidate the final EIS.493 The Resource Conservation
489.
LESTER ET AL., supra note 433, at 4-5; cf. Mitchell, Mertig & Dunlap, supra note
4, at 20 (describing national environmental organizations as generally preferring lobbying
over direct action, and stating, “[l]obbyists play a crucial role in pressuring Congress and the
various government agencies involved with environmental issues to enact new laws and
implement the existing ones”).
490.
Mitchell, Mertig & Dunlap, supra note 4, at 20; see generally Cole, supra note 4,
at 646 (“The importance of the political process is heightened by the procedural emphasis of
many environmental laws.”). For a discussion of other U.S. legislation (although not strictly
environmental legislation) that provides for public participation and access to information,
see Francis Irwin & Carl Bruch, Public Access to Information, Participation, and Justice, in
STUMBLING TOWARD SUSTAINABILITY, supra note 19, at 511, 513-19 (summarizing the
access to information and public participation provisions of the Administrative Procedure
Act (APA), Freedom of Information Act (FOIA), Government in the Sunshine Act, and the
Emergency Planning and Community Right-to-Know Act (EPCRA)).
491.
National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 (2000). For a
discussion of the formulation of NEPA, see LYNTON K. CALDWELL, SCIENCE AND THE
NATIONAL ENVIRONMENTAL POLICY ACT: REDIRECTING POLICY THROUGH PROCEDURAL
REFORM (1982). Caldwell attributes part of the ability of environmentalism to gain force in
the United States to the right of citizen review of EISs under NEPA. Lynton K. Caldwell,
Globalizing Environmentalism: Threshold of a New Phase in International Relations, in
AMERICAN ENVIRONMENTALISM, supra note 4, at 63, 66 [hereinafter Caldwell, Globalizing
Environmentalism].
492.
42 U.S.C. § 4332(2)(C). For a discussion of how low-income and people of color
can use NEPA to educate community members about the negative environmental impacts of
proposed projects or existing hazards that should be removed from the community, see
Browne C. Lewis, What You Don’t Know Can Hurt You: The Importance of Information in
the Battle Against Environmental Class and Racial Discrimination, 29 WM. & MARY
ENVTL. L. & POL’Y REV. 327 (2005).
493.
See 42 U.S.C. § 4332(2)(C).

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and Recovery Act (RCRA) encourages the public to report to the EPA
exposure to hazardous waste at treatment, storage, and disposal facilities.494
RCRA also requires the EPA to facilitate public comment on any
settlement that it negotiates with facilities found to pose immediate and
substantial threats to the environment and human health before such
settlements are finalized.495 Under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), the EPA must
provide notice and analysis of a proposed plan to clean up a contaminated
site, provide opportunity for the submission of written and oral comments
on the proposed plan, and provide notice of the final plan, along with a
discussion of any changes in the proposed plan, before commencement of
any clean-up action.496 The Bureau of Land Management (BLM), pursuant
to the Federal Land Policy and Management Act (FLPMA), must develop,
maintain and, when appropriate, revise land use plans with public
involvement.497 Similarly, the National Forest Management Act (NFMA)
requires the Secretary of Agriculture to “provide for public participation in
the development, review, and revision of [national forest] land management
plans.”498 The Coastal Zone Management Act (CZMA) requires public
hearings in the development of state CZMA management plans.499 In
addition to notice-and-comment and public hearing requirements, as well
as the distribution of information to communities and citizen groups
pertaining to environmental policy,500 many of the major environmental
statutes permit ordinary citizens or public interest groups to act as “private
attorneys general” and seek civil penalties against a private party for

494.
495.
496.

Resource Conservation and Recovery Act, 42 U.S.C. § 6939a(c) (2000).
Id. § 6973(d).
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. § 9617(a)-(b) (2000). For a discussion of how the grassroots environmental
movement helped to expand the rights of citizens to participate in clean-up and response
activities, including participation in enforcement settlements and consent decrees in the
Superfund Amendments and Reauthorization Act of 1986 (SARA), see Freudenberg &
Steinsapir, supra note 435, at 34.
497.
Federal Land Policy and Management Act, 43 U.S.C. § 1712(a) (2000); see also
id. § 1712(f) (requiring the BLM to establish procedures, including public hearings, to give
the public “adequate notice and opportunity to comment upon and participate in the
formulation of plans and programs relating to the management of the public lands”).
498.
National Forest Management Act, 16 U.S.C. §1604(d) (2000).
499.
Coastal Zone Management Act, 16 U.S.C. § 1455(d)(3) (2000).
500.
For an overview of the development of administrative law from before the 1960s
to the current system of interest representation, as well as a summary of the ways in which
the environmental lobby may press for strong environmental standards and strict
enforcement of environmental statutes and regulations, see Mitchell, Mertig & Dunlap,
supra note 4, at 20.

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violations of the act or against the EPA for failure to enforce the act.501
Sustainable development—the multi-definitional and somewhat elusive
concept, approach or process that attempts to balance or integrate economic
development, social development/equity, and environmental protection—is
also pertinent to this Section’s inquiry.502 Although crime impedes social
sustainability503 and may impact a community’s efforts at both economic
and environmental sustainability,504 sustainable development’s relevance
here is to its emphasis on the importance of public involvement. Principle
10 of the Rio Declaration—the consensus statement of principles adopted
at the 1992 Earth Summit in Rio de Janeiro—proclaims that
“[e]nvironmental issues are best handled with the participation of all
concerned citizens, at the relevant level.”505 Agenda 21—the blueprint for
501.
See, e.g., Clean Air Act, 42 U.S.C. § 7604 (2000); Clean Water Act, 33 U.S.C. §
1365 (2000); Endangered Species Act, 16 U.S.C. § 1540(g) (2000).
502.
Although many definitions of “sustainable development” have been offered, the
most widely recognized definition comes from the 1987 World Commission on
Environment and Development (more commonly known as the Brundtland Commission),
which promulgated the idea of “sustainable development” as “development that meets the
needs of the present without compromising the ability of future generations to meet their
own needs.” U.N. ENV’T. PROGRAMME, World Comm’n on Env’t and Dev., Our Common
Future, ch. 2 ¶ 1, U.N. Doc. A/42/427 (Aug. 4, 1987).
For other definitions, see, e.g., Peggy F. Barlett, Introduction to URBAN PLACE, supra note
35, at 1, 6 [hereinafter Barlett, Introduction, URBAN PLACE] (explaining that “sustainability
seeks . . . a productive and viable intersection among economic, environmental, and social
domains of life” (citations omitted)); Cozens, supra note 46, at 130 (casting the concept as
involving three strands: environmental, social, and economic); Julian Agyeman & Tom
Evans, Toward Just Sustainability: Building Equity Rights with Sustainable Solutions, 590
ANNALS AM. ACAD. POL. & SOC. SCI. 35, 36 (2003) (employing a working definition based
on ensuring a better quality of life within the limits of supporting ecosystems).
Because sustainable development eludes the confines of a singular definition it
has received its share of criticism. See, e.g., Barlett, Introduction, URBAN PLACE, supra, at 7
(“Some . . . criticize sustainability objectives as vague, impractical, or easily co-opted by
powerful groups. Sustainability rhetoric can also leave aside consideration of institutions
that created the current crisis.” (citations omitted)). But a singular definition is neither
necessary to implement it nor to work towards it. See, e.g., Nancy J. King & Brian J. King,
Creating Incentives for Sustainable Buildings: A Comparative Approach Featuring the
United States and the European Union, 23 VA. ENVTL. L.J. 397, 400-01 (2005) (treating
sustainable development as a process, and arguing “it is not necessary to agree on a precise
meaning in order to pursue or promote sustainable development”).
503.
Brisman, Double Whammy, supra note 90, at 430 (describing crime as an
“impediment to a sustainable community”); see also du Plessis, supra note 422, at 33 (“No
city can call itself sustainable if the citizens of that city fear for their personal safety and the
safety of their livelihood.”).
504.
See infra Part III.B.
505.
U.N. Conference on Environment & Development, Rio de Janeiro, Braz., June 314, 1992, Rio Declaration on Environment and Development, Principle 10, U.N. Doc

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implementing sustainable development that was also adopted at the Earth
Summit and which has influenced the activities of the United Nations
Environment Program506—stresses the importance of public participation
in developing, implementing, and enforcing laws and policies related to
and necessary for sustainable development. Chapter 23 of Agenda 21,
entitled “Strengthening the Role of Major Groups,” is devoted entirely to
broadening and strengthening the role of traditionally under-represented
social groups in decision-making processes.507 It begins by observing that
“the commitment and genuine involvement of all social groups” is
“[c]ritical to the effective implementation of the objectives, policies and
mechanisms agreed to by Governments in all programme areas of Agenda
21.”508 It continues, using language that echoes the Principles of
Environmental Justice discussed above, as well as the participatory
components of what is characterized as U.S. environmental law:
One of the fundamental prerequisites for the achievement of sustainable
development is broad public participation in decision-making.
Furthermore, in the more specific context of environment and
development, the need for new forms of participation has emerged. This
includes the need of individuals, groups and organizations to participate
in environmental impact assessment procedures and to know about and
participate in decisions, particularly those which potentially affect the
communities in which they live and work. Individuals, groups and
organizations should have access to information relevant to
environment and development held by national authorities, including
information on products and activities that have or are likely to have a
significant impact on the environment, and information on
environmental protection measures.509

Chapter 27 fleshes out the role of non-governmental organizations (NGOs),
emphasizing the importance of both the more established organizations and
grassroots groups, and stressing the significance of dialogue and interaction
within the NGO universe, as well as between NGOs as a whole and
governmental entities:
Non-governmental organizations play a vital role in the shaping and

A/CONF.151/5/Rev.1 (June 13, 1992), reprinted in 31 I.L.M. 874, 878 (1992).
506.
See Irwin & Bruch, supra note 490, at 512.
507.
U.N. Conference on Environment & Development, Rio de Janeiro, Braz., June 314, 1992, Agenda 21, ch. 23, U.N. Doc. A/CONF.151/26 (June 14, 1992).
508.
Id. ¶ 23.1.
509.
Id. ¶ 23.2 (emphasis added); see also Willard, supra note 458, at 88 n.49. One
could argue that broadening the electorate in the United States by liberalizing criminal
disenfranchisement laws and policies creates the “new form of participation” by individuals
likely to be affected by development in the “communities in which they live and work.”

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implementation of participatory democracy. Their credibility lies in the
responsible and constructive role they play in society. Formal and
informal organizations, as well as grass-roots movements, should be
recognized as partners in the implementation of Agenda 21. The nature
of the independent role played by non-governmental organizations
within a society calls for real participation; therefore, independence is a
major attribute of non-governmental organizations and is the
precondition of real participation.
One of the major challenges facing the world community as it seeks
to replace unsustainable development patterns with environmentally
sound and sustainable development is the need to activate a sense of
common purpose on behalf of all sectors of society. The chances of
forging such a sense of purpose will depend on the willingness of all
sectors to participate in genuine social partnership and dialogue, while
recognizing the independent roles, responsibilities and special capacities
of each.510

Although Chapter 27 speaks in broad terms, its relevance to this Article is
no less significant, specifically with respect to the necessity of NGOs of all
shades to communicate with each other, rather than competing for
governmental attention or limiting their conversations to like-minded
NGOs—something explored in greater detail in Sections C and D of this
Part. Chapter 27 also attempts to balance the need for different sectors of
society to recognize commonalities—vital for addressing worldwide
environmental problems that present locally with different symptoms (e.g.,
global warming)—and the need for groups to flaunt their colors, maintain
their independence, and recognize their peculiar abilities—vital for U.S.
grassroots environmental and social justice organizations that may be
fearful of the power of the mainstream environmental movement.
Although public participation is integral to environmental justice,
numerous environmental laws, and to sustainable development, there is a
distinction between involvement in the environmental decision-making
process and voting. One can speak at a public hearing and submit
comments on draft environmental impact statements and proposed land use
plans, as well as bring a citizen suit, without possessing the franchise511
(although given disenfranchised individuals’ feelings of alienation from the
political system, their participation in hearings and their submission of
510.
511.

Id. ¶¶ 27.1-27.2.
Riley E. Dunlap, Public Opinion and Environmental Policy, supra note 450, at
108 (“[V]oting is only one of many political actions that people take. . . . Contributing
money, distributing campaign literature, making phone calls, and so on, can be of immense
value . . . . Such political behaviors . . . are all ways in which the American public can
support environmental protection.”).

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comments is likely to be limited, especially if they cannot voice their
displeasure at the polls). Similarly, because fairly few environmental issues
are subject to referenda,512 one can vote consistently and conscientiously
and still remain isolated and detached from the environmental decisionmaking process. Thus, there is not a direct link between broadening the
electorate by scaling back or repealing criminal disenfranchisement laws
and greater participation in the environmental decision-making process
(and presumably greater environmental protection). But several
commentators have noted that public participation in environmental policy
“promote[s] a sense of civic involvement, civic responsibility, and a more
involved citizenry.”513 Such civic involvement and responsibility is not
only vital as a means of protecting the environment—especially where
government has not acted—but also in creating the type of cohesion and
informal social control necessary to prevent and reduce crime—an idea
noted in Part II.B.3.b and explored in greater detail in Section B of this
Part. While voting can also advance civic involvement and responsibility,
disenfranchisement can promote civic detachment, undercutting the power
and efficacy of the public participation components in environmental
policy.
Along these lines, Lester, Allen and Hill, citing numerous studies
examining the linkage between political mobilization and environmental
hazards, note that high levels of political mobilization, as measured by
voter turnout at the state and county level, play a role in diminishing levels
of environmental hazards.514 The key here is the measurement of voter
turnout. As Lester and his colleagues conclude: “increased political
mobilization should have the effect of minimizing environmental harms,
because policymakers are likely to pay attention to problems articulated by
this type of community.”515 In other words, communities with high levels
of political mobilization (i.e., high voter turnout) are communities that
attract the interest of politicians, who must then protect and satisfy their
constituents. In light of Part II.B.3.b’s discussion of how politicians focus
their attention away from neighborhoods and communities with high rates
512.
But see infra Section C (discussing the environmental impact of prisons–often
built pursuant to voter-approved county-issued bonds).
513.
Evan J. Ringquist, Evaluating Environmental Policy Outcomes, in
ENVIRONMENTAL POLITICS & POLICY, supra note 1, at 303, 304 (citing JOHN S. DRYZEK,
DISCURSIVE DEMOCRACY: POLITICS, POLICY, AND POLITICAL SCIENCE (1990); PUBLIC POLICY
FOR DEMOCRACY (Helen Ingram & Steven Rathgeb Smith, eds., 1993)).
514.
LESTER ET AL., supra note 433, at 60-61. Note, however, that because local
elections are held at different times throughout the state and no agency systematically
collects these election results, city mobilization cannot be not measured by using voter
turnout. Id. at 61.
515.
Id. at 60.

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of disenfranchisement, as well as this Section’s comments regarding poor
or minority communities’ lack of political power, it follows that political
mobilization, measured by an indicator of voter turnout, would result in
lower levels of environmental harm. Criminal disenfranchisement, then,
frustrates efforts to achieve environmental justice, sustainable development
and the type of public participation that environmental law holds dear.
Admittedly, there is also a distinction between grassroots environmental
justice groups and social justice groups working on issues of criminal
justice and prison reform, reentry and disenfranchisement. Although
environmental justice groups may be closely aligned with other grassroots
social justice groups516 and although grassroots social justice groups may
share the same background and perspective as grassroots environmental
justice groups, they are not synonymous.517 While environmental justice
groups have had success forming coalitions with other social justice
groups518—indeed, the environmental justice movement is the offspring of
the civil rights movement and inner-city environmentalism—the
mainstream environmental movement does not share this achievement. As
Ingram, Colnic and Mann point out, “[i]f coalitions among environmental
organizations are difficult to form, alliances between environmental and
nonenvironmental groups are even harder to establish and maintain.”519
Thus, one might argue that MEOs may well regard joint efforts to combat
disenfranchisement laws and policies as an augean task ill worth their time
and efforts. Although coalition building of any nature is difficult,520 there
are a number of reasons to think that a coalition between the mainstream
516.
Ingram, Colnic & Mann, supra note 433, at 121 (describing alignment of
environmental justice groups with civil rights and church-based community organizations).
517.
This does not mean there are no instances of overlap. For example, the prison
reform group Critical Resistance’s objections to rural prisons are based on environmental
grounds. Infra note 531 and accompanying text. In addition, the non-profit Tennessee
grassroots organization Save Our Cumberland Mountains (SOCM), which works on
economic, environmental and social issues (sustainable forestry, clear cutting, strip mining,
mountain top removal, aerial spraying, and tax reform), adopted the issue of criminal
disenfranchisement to its broad agenda in 2003. Infra note 523 and accompanying text.
518.
Ingram, Colnic & Mann, supra note 433, at 134 (“[G]rassroots activists have been
particularly adept at forming coalitions outside of traditional environmentalism.
Environmental equity groups established important linkages with public health, civil rights,
and social justice advocates.”).
519.
Id. at 133.
520.
See, e.g., Adam Cohen, Bloggers at the Gates: What Was Good for EBay Should
Be Good for Politics, N.Y. TIMES, Mar. 12, 2006, §4, 11 (“After the disastrous 2004
election, prominent Democrats gathered in Monetery, Calif., to discuss what to do next. The
organizers scheduled a session on coalition building, but each special interest complained
that its issue was being slighted. In the end, the coalition-building session broke up into five
separate groups, each focusing on its own issue.”).

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environmental movement and social justice groups could succeed in
working together on disenfranchisement issues.
First, Ingram and her colleagues support their assertion by citing the
example of attempted unions between the mainstream environmental
movement and labor: “Policy goals are often portrayed as zero-sum tradeoffs between environmental protection on one side and jobs and economic
growth on the other, thus alienating the environmental community from
labor and industry.”521 This Article’s proposed alliance would not present
such zero-sum trade-offs. Allowing offenders and ex-offenders to vote does
not sacrifice environmental protection for job security or economic growth.
While disagreements between MEOs and social justice groups may take
place farther down the road once a critical mass of individuals become
empowered with the franchise, the “environment,” as defined by MEOs,
will not suffer as a result of this Article’s proposed union. In fact, a more
expansive electorate may well lead to broader and richer solutions to
environmental problems and more effective means and methods of
implementing them.
Second, Ingram, Colnic and Mann note, mainstream and grassroots
groups “are often divided on policy and cannot form coalitions” because
the local or grassroots groups fear the mainstream groups’ willingness to
compromise will result in a “bargain[ing] away [of] their collective
interest.”522
It is true that environmental justice groups and MEOs have often spoken
different languages—the former using charged, emotional language to
describe the human health impacts of an environmental hazard, the latter
employing cold, detached scientific terminology and legal jargon. It is also
correct that MEOs have occasionally compromised on points or issues that
grassroots environmental groups have been unwilling to cede. But criminal
disenfranchisement is not couched in scientific terms nor is its language
particularly arcane. There are also a limited range of options regarding
offender and ex-offender voting, as noted earlier in Part II.B—from no ban
to bans on various classes of offenders and ex-offenders. Obviously,
members of a coalition might disagree on which proposals might be more
legislatively feasible or which legal strategies might be more successful in
court. But the extent of fracture within a coalition of MEOs and social
justice groups on the issue of disenfranchisement may well be less than the
degree of division between mainstream environmental groups and
grassroots environmental justice organizations on a traditionally

521.
522.

Ingram, Colnic & Mann, supra note 433, at 133.
Ingram, Colnic & Mann, supra note 433, at 132 (“The characteristic willingness
to compromise by the mainstream groups compared to the general steadfastness of local
groups has made coalition formation and maintenance problematic.”).

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environmental issue because of the limited scope of (dis)enfranchisement
possibilities. In addition, whereas a less than ideal land use plan or siting
decision may still have long-term adverse ecosystem and human health
impacts, a less than complete victory with respect to criminal
disenfranchisement still broadens the electorate.
Finally, only one environmental organization to date—Save Our
Cumberland Mountains (SOCM)—the non-profit Tennessee-based
grassroots organization working on state-wide economic, environmental,
and social justice issues—is currently working with other grassroots groups
to restore voting rights to disenfranchised Tennessee citizens.523 Although
neither the environmental movement nor the grassroots community has
voiced specific support for a larger coalition built around the issue of
criminal disenfranchisement, both sides have called for unions addressing
broader political, social, and economic disparities, which could well
include criminal disenfranchisement.524 For example, Shabecoff argues that
in order
[t]o make the political breakthrough necessary to achieve their goals,
the environmentalists must make common cause with other sectors of
our society that have a stake in changing the political and economic
status quo. Potential allies include the poor, minorities, women,
industrial workers, and other vulnerable groups whose vital interests
demand significant social change.525

Bemoaning the environmental movement’s rejection of its social justice
heritage, as noted earlier in this Section, Shabecoff continues:
The great failure of much of the national movement in recent years, in
my opinion, has been its unwillingness or inability to take up the causes
of social justice in the United States. This failure is all the more
dismaying because one of the deepest roots of contemporary
523.
Save Our Cumberland Mountains, Social Progress Committee: Dismantling
Racism, Voter Rights, http://www.socm.org/racism.html (last visited April 22, 2007)
(proposing and supporting legislation to return voting rights automatically to people “on
probation or parole and to those who had served their jail or prison sentences”).
524.
Cf. Demleitner, Preventing Internal Exile, supra note 32, at 159 (“[E]x-offenders
generally do not benefit from the support of other groups unless their plight can be tied into
other societal or group concerns, such as the disproportionate denial of voting rights to
African-Americans.”); Shapiro, supra note 221, at 564 n.145 (“Society’s continued disdain
for criminal offenders may . . . explain why criminal disenfranchisement is rarely
challenged. Members of minority-advocacy groups like the NAACP, for example, may be
too preoccupied with trying to protect the rights of law-abiding citizens . . . [to expend
resources fighting for] those who have committed crimes.”).
525.
SHABECOFF, supra note 2, at 281; see generally Cozens, supra note 46, at 130
(“[E]nvironmentalists need to shift their emphasis towards embracing more energetically
‘social’ aspects of the environment and the urgent problems of the inner city.”).

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environmentalism lies, as we have seen, in the activist civil
rights/peace/women’s tradition of the 1960s.526

This point is echoed by Cole, who notes that “[o]ne of the central lessons
that can be drawn from the political organizing in the 1960’s is the need for
such a mass base for a movement to be successful.527 And Peggy M.
Shepard, the Executive Director and Co-Founder of West Harlem
Environmental Action, Inc. (WE ACT), regards coalitions between MEOs
and grassroots organizations as vital to rectifying the MEOs’ previous
disregard for issues peculiar to low-income communities of color and to
combating systematic economic and social problems and injustices528—the
types of troubles that can be both a cause and a system of crime. This
Article now turns from the relationship between MEOs and grassroots
organizations to the impact of crime on the environment and the effect of
different physical environments on crime.
B. The Impact of Crime on the Environment and Environment on
Crime
As mentioned in Part II.B.3, courts in this country and abroad, as well as
correctional officials and other commentators, have asserted a connection
between disenfranchisement and recidivism and, more generally, between
voting and crime. This Section explores first whether crime adversely
impacts the environment and posits that if such a relationship does exist,
then disenfranchisement laws and policies should be well within the
purview of environmental law and policy and on the agenda of
environmental activists like Becker. This Section then explores the reverse
proposition—whether certain environmental characteristics positively or
negatively affect the conditions ripe for crime. It next proposes that if the
presence, rather than the absence, of nature (specifically, nearby urban
nature) diminishes the likelihood of crime, then a two-pronged crimereducing approach is in order—increasing urban nature and increasing
political participation.
The evidence and theories supporting the adverse impact of crime on the
526.
527.
528.

SHABECOFF, supra note 2, at 281.
Cole, supra note 4, at 633 n.38.
Shepard, supra note 383, at 751. See also email from Peggy M. Shepard, supra
note 440. Shepard writes,
I still believe that there need to be coalitional efforts that bring in diverse voices if
we are to make progress and build constituencies around a number of issues. . . .
[Y]ou must work in coalition . . . if you are to change policy at the city, state or
national levels. I do not believe you can change the conditions in poor or
communities of color without changing policy, legislation and the political will.
Id.

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environment can be placed into several different, although by no means
exhaustive or exclusive, categories: 1) crime’s effect on the environment of
prisoner-importing communities; 2) crime’s effect on the environment of
offenders’ home communities; 3) crime’s broader environmental impact
(neighborhoods, communities, and localities adjacent to prison-exporting
communities, but not themselves prison-importing communities, as well as
to states and counties as a whole).529 For an example of the first, the
combination of increased reliance on prison as a form of punishment and
lengthy prison sentences, as alluded to in Part II, has led to the rural prisonbuilding proliferation. According to Abramsky, when federal and state
prisons and immigration holding facilities are built (usually with junk
bonds or county-issued revenue bonds) in impoverished, sparsely
populated, and parched desert counties, such as Sierra Blanca in Hudspeth
County, Texas, east of El Paso, and La Salle County, in South Texas, they
frequently “tap out the counties’ meager water reserves and make it all but
impossible for other businesses to come in.”530 Similarly, Critical
Resistance, a national grassroots organization that seeks alternatives to
incarceration, contends that prisons are not ‘clean industries’:
They suck up scarce local resources such as water; they require towns to
pay for roads, sewers [and] utilities; they generate tens of thousands of
miles of commuting pollution, often in the most polluted parts of the
state; they take irreplaceable land out of any productive use, wasting
valuable public resources for nothing but holding people in cages.531

While certainly some rural prisons are built on spec, crippling counties
forced to service bond debts if they cannot fill prison beds,532 one could
make the fairly plausible argument that a decrease in crime might retard the
prison-building frenzy. Reforming criminal disenfranchisement laws and
policies would not single-handedly reduce recidivism or create the
collective efficacy that Sampson, Raudenbush, and Earls argue is necessary
for neighborhoods to exert the type of informal social control necessary to
limit crime. But if there is a link between disenfranchisement and crime
and if there is a link between crime and environmentally destructive prison
projects—the type of projects that the environmental movement would
529.
For an example of a measure that affects both crime and the environment, see,
e.g., DAVID PRERAU, SEIZE THE DAYLIGHT: THE CURIOUS AND CONTENTIOUS STORY OF
DAYLIGHT SAVING TIME (2005) (discussing how daylight saving time curbs energy
consumption, reduces traffic fatalities, and results in decreased crime).
530.
ABRAMSKY, supra note 37, at 107.
531.
CRITICAL RESISTANCE, PRISONS: NEW FORMS OF ENVIRONMENTAL RACISM (2002),
http://www.criticalresistance.org/index.php?name=environmental_racism.
532.
See generally Sasha Abramsky, Incarceration, Inc., supra note 407 (discussing a
facility built in Reeves County, Western Texas).

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consider to be an “environmental” battle worth undertaking—then it would
be reasonable to suggest that the environmental community consider
criminal disenfranchisement an environmental issue.
To provide an example of crime’s effect on the environment of
offenders’ home communities, as well as its broader environmental impact,
consider that when a community is faced with the problem of crime, it may
be unable to devote its time and resources, which may already be
overburdened, to environmental problems.533 In addition, recall that in Part
II.A this Article cited the research of Hagan and Dinovitzer and asserted
that when individuals are taken from their communities and imprisoned,
their communities lose potential members of the legitimate workforce,
increasing the likelihood that businesses might relocate to the suburbs in
order to find a more consistent and reliable workforce.534 The exodus of
both young men to prisons and businesses to the suburbs, this Author
argued in Double Whammy: Collateral Consequences of Conviction and
Imprisonment for Sustainable Communities and the Environment, may
contribute to the adverse environmental problems of sprawl (e.g., poor air
quality, water quality, loss of open space, and loss of biodiversity).535 This
departure of businesses further reduces the employment opportunities of
ex-prisoners, as well as the job prospects for the remaining young adults in
those communities, increasing the odds of recidivism in the former and the
beginning of a criminal career in the latter, and subsequently increasing the
chance that the remaining businesses will also leave, creating a vicious
cycle.536 Double Whammy also contended that crime and the fear of crime

533.
Brisman, Double Whammy, supra note 90 at 430 (“A community with significant
social problems, such as crime, will be unable to address other key issues, such as
environmental problems, because it will focus on social problems.”); see generally HUNTER,
SALZMAN & ZAELKE, supra note 431, at 1281 (“The failure to protect and promote human
rights prevents progress towards environmental protection and sustainable development.”);
see also sources cited supra note 90 and accompanying text; infra note 562-69 and
accompanying text.
534.
See supra notes 151-52; see also Brisman, Double Whammy, supra note 90, at
430, 449-53.
535.
Brisman, Double Whammy, supra note 90, at 431, 456-59. While there are
countless sources discussing the adverse environmental and human health impacts of
sprawl, for a good overview, see William Buzbee, Sprawl’s Political-Economy and the Case
for a Metropolitan Green Space Initiative, 32 URB. LAW. 368-69, 372-73 (Summer 2000)
(“[S]prawling growth often leaves behind increasingly impoverished central urban areas,
destroys green space, converts agricultural land to residential or business use, and
contributes to deteriorating air pollution as residents must drive increased distances to jobs
and to obtain basic amenities.”); Howard Frumkin, The Health of Places, the Wealth of
Evidence, in URBAN PLACE, supra note 35, at 253, 262-64 (describing the features of
sprawling communities and subsequent health implications).
536.
See Brisman, Double Whammy, supra note 90, at 455; LYNCH & SABOL, supra

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leads to the unlimited outward extension of cities537—the “flight from
blight”538—and to the unsustainable practice of driving sports utility
vehicles (SUVs),539 which purposefully appeal to fear of violence and
crime.540 Because the collateral consequences of conviction and
imprisonment contribute to recidivism—because an assortment of laws
encumbering offenders’ and ex-offenders’ abilities to secure employment,
housing and benefits, thereby increasing the likelihood that they will
commit crimes that they might not have otherwise—and because crime and
the fear of crime hampers a community’s ability to address environmental
problems and may result in sprawl and SUV-driving, Double Whammy
maintained that many of the collateral consequences should be re-examined
and that environmental organizations should join forces with organizations
devoted to bringing about changes in these laws. While Double Whammy
focused on the difficulties that offenders and ex-offenders face with respect
to employment, housing and benefits, some of the same reasoning and
conclusions apply here: crime, regardless of its genesis, may hamper a
community’s ability to address its own environmental problems and issues,
note 30, at 3 (observing that limited access to jobs in metropolitan areas “may impose
further constraints on the capacity of communities to reintegrate ex-prisoners”); WESLEY G.
SKOGAN, DISORDER & DECLINE: CRIME AND THE SPIRAL OF DECAY IN AMERICAN
NEIGHBORHOODS 65 (1990) (“[T]he stigmatizing effect of disorder discourages outside
investors, and makes it more difficult for local businesses to attract customers from
outside.”).
537.
Brisman, Double Whammy, supra note 90, at 431, 460-62. See generally Buzbee,
supra note 535, at 372 (“Unlike more dense urban forms where residents use mass transit
and do much of their travel and shopping on foot, suburban living leads to fewer random
interactions with strangers and neighbors. This greater predictability and insularity of
suburban living is, of course, part of suburbia’s attraction for many citizens.”).
538.
PIETRO S. NIVOLA, LAWS OF THE LANDSCAPE: HOW POLICIES SHAPE CITIES IN
EUROPE AND AMERICA 91 (1999). See also Julie Berry Cullen & Steven D. Levitt, Crime,
Urban Flight, and the Consequences for Cities, 81 REV. ECON. AND STATISTICS 159, 159-60
(May 1999) (examining the relationship between crime and urban flight across three
different data sets and concluding that (1) for every reported central city crime there is a net
decline of approximately one city resident; (2) almost all of the crime-related impact on
falling city population is the result of individuals leaving the city (out-migration) rather than
a decline in new arrivals (in-migration); and (3) highly educated households and households
with children are most responsive to crime; there is little difference between blacks and
whites); SKOGAN, supra note 536, at 18-20 (concluding based on studies of forty
neighborhoods in eight cities that crime rates affect individuals’ attitudes towards their
neighborhoods and their decisions to move). For a recent study of the connection between
crime and population change in central cities and their suburbs, see Joong-Hwan Oh, A
Dynamic Approach to Population Change in Central Cities and Their Suburbs, 1980-1990,
64 AM. J. ECON. SOC. 663 (Apr. 2005).
539.
Brisman, Double Whammy, supra note 90, at 462-71.
540.
Id. at 465.

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and may spur some of the unsustainable demographic shifts and driving
behaviors requiring the unified efforts of environmental and social justice
organizations.
In further support of the crime-environment relationship (i.e., the broad
impact of crime on the environment), Gareth Newham, Project Manager in
the Criminal Justice Programme at the Centre for the Study of Violence
and Reconciliation in South Africa, notes that “[i]n South Africa the high
level of crime has overburdened the police service, the courts and the
judiciary. Such a situation substantially challenges the ability of the state to
monitor and enforce environmental laws and regulations.”541 To illustrate,
he points to the devastating degree of illegal poaching of perlemoen—a
popular, but endangered ocean mollusk.542 With less crime, Newham
explains, law enforcement could better curtail the illegal trade in
endangered species and could better investigate and prosecute those who
operate in defiance of environmental standards.543 Newham also cites
white-collar crime and government corruption as similarly encumbering
governmental efforts and attention to directly and indirectly address
environmental issues544—directly, via enforcement of existing
environmental laws, indirectly, by rectifying some of the social inequities
that result in environmental degradation. More specifically, Newham
asserts:
The effect of corruption can . . . have a significant effect on the
environment. . . . [W]hen the poor are forced into survival strategies due
to underdevelopment, it can have a significant destructive impact on the
environment. There are a number of examples of this in South Africa.
Where there is no electrification, huge amounts of wood and coal will
be burned which in turn promotes deforestation and air pollution.
Corruption may mean that money that could be spent on uplifting the
poor to ensure that they can live without negatively effecting the
environment is not available.545

While there is no reason to doubt the existence of the environmental
problems that Newham discusses or to question the correlation between
541.
GARETH NEWHAM, CENTRE FOR THE STUDY OF VIOLENCE AND RECONCILIATION,
THE RELEVANCE OF THE NATIONAL CRIME PREVENTION STRATEGY FOR SUSTAINABLE
DEVELOPMENT IN SOUTH AFRICA (June 1999), http://www.csvr.org.za/papers/papncps2.htm.
542.
See id.
543.
Id.
544.
Id.
545.
Id. See also du Plessis, supra note 422, at 35 (“Poverty . . . is one of the great
stumbling blocks to sustainable development. . . . Poor rural and urban communities have to
prioritise survival and therefore ignore the consequences of the over-utilisation of resources,
while governments in developing countries are often tempted to embrace ecologically
unsound development strategies in order to achieve short term economic growth.”).

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these problems and crime, it is unlikely that crime in South Africa results
from disenfranchisement given that South African prisoners now vote.546 In
addition, the connection between crime and environmental degradation that
Newham explores is unlikely to exist in the United States. First, violent
crime in the United States is substantially lower than in South Africa. South
Africa, with a population of about 40 million people, suffers about 25,000
murders per year.547 According to the Federal Bureau of Investigation’s
Uniform Crime Reporting (UCR) Program,548 there have been between
13,230 and 14,860 murders per year in the years 2000-2005 in the United
States,549 which has a population seven times that of South Africa.550
Second, while South African courts and law enforcement are chronically
underfunded,551 the opposite is true in the United States with the post-9/11
Congressionally-encouraged
paramilitarization
of
local
police

546.
547.

See ISPAHANI, supra note 15, at 22.
See Sasha Abramsky, One Nation, Under Seige, AMERICAN PROSPECT, Apr. 1,
2005, available at http://www.prospect.org/web/printfriendly-view.ww?id=9365.
548.
The U.S. Department of Justice administers two different statistical programs to
measure the magnitude, nature, and impact of crime in the United States: the Federal Bureau
of Investigation’s (FBI) Uniform Crime Reporting (UCR) Program and the Bureau of
Justice Statistics’ National Crime Victimization Survey (NCVS). The UCR Program and
NCVS employ different methodologies, but measure a similar subset of serious crimes
(rape, robbery, aggravated assault, burglary, theft, and motor vehicle theft) and were
designed to complement each other. The UCR Program provides a nationwide view of crime
based on the voluntary submission of statistics by city, county, state, tribal, and federal law
enforcement agencies throughout the country (representing over ninety percent of the total
population). The NCVS is a biannual survey of approximately 42,000 households (about
75,000 people) conducted by the U.S. Census Bureau and providing a detailed picture about
crime incidents (time and place of occurrence, use of weapons, nature of injury, and
economic consequences), victims (age, sex, race, ethnicity, marital status, income, and
educational level), and offenders (sex, race, estimated age, victim-offender relationship). In
contrast to the UCR program, which includes only those crimes reported to the police, the
NCVS collects information on crimes suffered by individuals and households, regardless of
whether those crimes were reported to law enforcement. See BUREAU OF JUSTICE STATISTICS,
U.S. DEP’T OF JUSTICE, THE NATION’S TWO CRIME MEASURES (Oct. 2004), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/ntcm.pdf.
549.
There were 13,230 murders in 2000; 14,061 in 2001 (excluding homicides as a
result of the events of September 11, 2001); 14,263 in 2002; 14,465 in 2003; 14,210 in
2004; and 14,860 in 2005. See U.S. DEP’T OF JUSTICE, FED. BUREAU OF INVESTIGATION,
CRIME REPORTED IN THE UNITED STATES: 2005: OFFENSES REPORTED: VIOLENT CRIME:
MURDER,
available
at
http://www.fbi.gov/ucr/05cius/offenses/violent_crime/
murder_homicide.html; U.S. DEP’T OF JUSTICE, FED. BUREAU OF INVESTIGATION, CRIME
REPORTED IN THE UNITED STATES: 2004: OFFENSES REPORTED: VIOLENT CRIME: MURDER,
available at http://www.fbi.gov/ucr/cius_04/offenses_reported/violent_crime/murder.html.
550.
See supra note 52 and accompanying text.
551.
Abramsky, One Nation, Under Siege, supra note 547.

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departments.552 While some environmental organizations in the United
States would claim that the Environmental Protection Agency has failed to
monitor and enforce various environmental laws,553 this alleged neglect is
likely due to governmental policy decisions, rather than an overburdened
police force, and certainly has not resulted in the illegal poaching and
trading of endangered species, as in South Africa. Furthermore, while
white-collar crime and government corruption has generated headlines in
the United States (e.g., the Enron and Jack Abramoff scandals554—the
former having been referred to as “the greatest corporate scandal in
American history”555), it would be difficult to argue that this kind of
economic crime has affected the U.S. government’s ability to direct
revenue to projects that benefit the poor and the environment, as Newham
has suggested to be the case in South Africa.556 Finally, while South
Africa’s poor gravitate to rural provinces,557 the poverty-stricken in the
United States tend to live in urban areas.558 Though rural America is not
without its share of poor towns and communities, individuals residing there
usually have electricity and are fortunate not to have to resort to the type of
wood-burning that results in deforestation and air pollution that Newham
describes in South Africa.559 Thus, Newham’s research and conclusions
may well show a link between crime and environmental degradation, but
552.
See John Tierney, The SWAT Syndrome, N.Y. TIMES, June 20, 2006, at A17
(discussing how the police forces in the United States are better armed and trained than ever
before and now have assault rifles, flash grenades, battering rams, armed personnel carriers
and helicopters at their disposal).
553.
See infra Part III.C.
554.
See, e.g., Susan Schmidt & James V. Grimaldi, Abramoff Pleads Guilty to 3
Counts, WASHINGTON POST, Jan. 4, 2006, at A1.
555.
Kurt Eichenwald, An Enron Chapter Closes: The Overview; Enron Founder,
Awaiting Prison, Dies in Colorado, N.Y. TIMES, July 6, 2006, at A1.
556.
NEWHAM, supra note 541.
557.
Id.
558.
See generally Elizabeth Barham, David Lind & Lewis Jett, The Missouri Regional
Cuisines Project: Connecting to Place in the Restaurant, in URBAN PLACE, supra note 35, at
141, 141 (“Physical distance separates most of us from agricultural land because the
majority of the world’s population lives in urban areas, a trend toward human concentration
in cities that is expected to continue globally for the foreseeable future.”). Cf. Timothy
Egan, Amid Dying Towns of Rural Plains, One Makes a Stand, N.Y. TIMES, Dec. 1, 2003, at
A1 (“During the greatest economic boom in modern American history, the late 1990’s, the
income gap between city and rural workers opened wider than ever. People in rural counties
of the Great Plains make 48 percent of what their metro-area counterparts make.”).
559.
National parks in the United States are not exempt from crime. See, e.g., Thieves
Steal Tree Bark For Thriving Herbal Market, N.Y. TIMES, Aug. 13, 2006, § 1, at 22
(discussing the theft of bark from elm trees in Daniel Boone National Forest, KY and
quoting John Garrison, National Park Service spokesperson, for the proposition that
“[v]irtually everything on public lands has a market”).

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not all of the links he makes are applicable U.S. causes of crime or sources
of environmental problems.
While Newham’s suggestion that white-collar crime and governmental
corruption may affect a government’s ability to direct revenue to projects
that benefit the poor and the environment may not pertain to the United
States on the federal level, his proposition that “the relative savings
resulting from crime prevention strategies could free up significant
resources that could be used to promote the sustainability of development”
enjoys merit in the United States on the local level.560 As noted above, the
frequent use of incarceration as a penalty may well affect the public safety
of the “prisoner-exporting” communities and their ability to address various
social problems.561 For example, Eric Cadora of the Open Society
Institute’s Criminal Justice Initiative and fellow researcher Charles
Schwartz have used sophisticated Geographic Information Systems (GIS)
equipment to map both the amount of money being spent on individual
prisoners according to their home addresses and the amount of money
being spent in those neighborhoods for social programming.562 Their
research has revealed a troubling inverse correlation between funding for
incarceration and funding for social programming: neighborhoods with
high dollar amounts for incarceration have also displayed low dollar
amounts for the very infrastructure that they believe lies at the core of
crime prevention—afterschool care, job counseling, addiction recovery
programs, reentry programming, including job training and transitional
housing.563 In other words, far from reducing the conditions that bring
about crime, huge spending on incarceration564 has actually sacrificed
public safety.565 Fortunately, their research has spurred some localities to
engage in “justice reinvestment”—what Cadora and Tucker (another coresearcher of Cadora’s, mentioned in Part II) term the reallocation of
dollars from incarceration to rebuilding the human resources and physical

560.
NEWHAM, supra note 541 (noting a home visitation program in Hawaii that led to
a decrease in child abuse and a savings of $1.3 million).
561.
See sources cited supra note 90 and accompanying text; see also sources cited
supra notes 535-540 and accompanying text.
562.
Courtney E. Martin, Seeing With New Eyes: Mapping Justice With Eric Cadora,
36 CLAMOR, 47, 47 (Spring 2006).
563.
Id. at 47-49.
564.
See Martin, supra note 562 at 47 (stating that in 2003, the federal government
spent $25,327 per inmate/per year, and that California spends $3.6 billion per year on prison
operations and $500 million per year on new prison construction); Tucker & Cadora, supra
note 60, at 2 (discussing an area of New Haven, CT in which $20 million/year is spent
annually on prison for 387 people, and citing the overall cost of incarceration in this country
at $54 billion/year).
565.
Tucker & Cadora, supra note 60, at 2.

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infrastructure of neighborhoods with high rates of imprisonment.566
According to Cadora and Tucker, “[i]dentifying unproductive spending in
correction budgets is the first step in the justice reinvestment process; the
second step is the segregation and protection of a portion of these funds,
and the third step is to reinvest the money into the public safety of high
incarceration neighborhoods.”567 Connecticut, for example, which used to
have one of the fastest growing prison populations, has now become a state
with one of the fastest dropping prison populations because of the type of
multimillion dollar set-asides from the prison budget and subsequent
reinvestment568 that Cadora and Tucker advocate – reinvestment in schools
and healthcare facilities, as well as parks and other public open spaces.569
Although better schools and healthcare facilities, as well as the
availability of afterschool care, job counseling, addiction recovery
programs, and reentry programming, including job training and transitional
housing, may seem paramount to ensure a safe and crime-free community,
parks and open spaces may seem to be more of a luxury570 and may also
appear to present more of an opportunity for crime-related activities to
transpire.571 But a number of environmental psychologists and
environmental designers have found differently, supporting the proposition
that certain environmental characteristics may promote or diminish the
conditions ripe for crime.
566.
Martin, supra note 562, at 48 (defining “justice reinvestment” as the effort “‘to
invest in public safety by reallocating justice dollars to refinance education, housing,
healthcare, and jobs.’” (quoting Eric Cadora)); Tucker & Cadora, supra note 60, at 4 (“A
basic principle of justice reinvestment is to redefine the notion of public safety. Research
proves that public safety is not assured by imprisonment alone.”).
567.
Tucker & Cadora, supra note 60, at 3.
568.
Martin, supra note 562, at 48-49.
569.
Tucker & Cadora, supra note 60, at 2.
570.
See Rebekah Levine Coley, Frances E. Kuo, and William C. Sullivan, Where
Does Community Grow?: The Social Context Created by Nature in Urban Public Housing,
29 ENV’T. & BEHAVIOR 468 (July 1997) [hereinafter Coley, Kuo & Sullivan, Where Does
Community Grow?] (“Many may believe that attractive landscaping, trees, grass, and flower
beds are ‘extras’ that cannot be expected in subsidized housing.”); Stephen Kaplan &
Rachel Kaplan, Health, Supportive Environments, and the Reasonable Person Model, 93
AM. J. OF PUB. HEALTH 1484, 1488 (Sept. 2003) (describing the planning perspective that
treats environmental changes as amenities, not necessities).
571.
According to Kuo and Sullivan, “dense vegetation provides potential cover for
criminal activities, possibly increasing the likelihood of crime and certainly increasing the
fear of crime. Large shrubs, underbrush, and dense woods all substantially diminish
visibility and therefore are capable of supporting criminal activity.” Frances E. Kuo &
William C. Sullivan, Environment and Crime in the Inner City: Does Vegetation Reduce
Crime?, 33 ENV’T & BEHAVIOR 343, 345 (May 2001) [hereinafter Kuo & Sullivan, Does
Vegetation Reduce Crime?]. Not all vegetation blocks views, however. Id. (describing
grassy areas and high-canopy trees as “unlikely to provide cover” for crime).

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Because a significant number of researchers have examined the effects
of outdoor green common spaces on human behavior and functioning,572 a
comprehensive review of their findings is outside the scope of this Article.
In the interests of brevity, this Article highlights the findings of some of the
studies conducted by researchers at the Human-Environment Research
Laboratory at the University of Illinois at Urbana-Champaign. Such studies
useful are for this Article’s inquiry because of the locus of their research
site—two Chicago public housing developments (Robert Taylor Homes
and Ida B. Wells)573—both of whose residents are overwhelmingly African

572.
For example, researchers have explored the positive, and even restorative, impact
of nearby nature on communities, office workers, school children, and hospital patients. See
generally Maureen E. Austin, Partnership Opportunities in Neighborhood Tree Planting
Initiatives: Building from Local Knowledge, 28 J. ARBORICULTURE 178 (July 2002) (finding
that tree planting projects on vacant lots in urban areas enhanced community identity and
connectedness, and participation in community improvement); RICHARD LOUV, LAST CHILD
IN THE WOODS: SAVING OUR CHILDREN FROM NATURE-DEFICIT DISORDER (2005) (showing
how direct exposure to nature is vital for the physical and emotion health of children and
adults); Andrea Faber Taylor, France E. Kuo and William C. Sullivan, Views of Nature and
Self-Discipline: Evidence from Inner City Children, 22 J. OF ENVT’L. PSYCH. 49 (2002)
(finding that contact with nature fosters greater self-discipline and improves inner-city girls’
ability to concentrate); Roger S. Ulrich, View Through a Window May Influence Recovery
from Surgery, 224 SCIENCE 420 (1984) (finding that in a sample of patients undergoing
similar surgical procedures, those who had views of trees experienced shorter post-operative
hospital stays and took fewer analgesic doses); see also Frumkin, supra note 535, at 256-57,
259 (discussing Ulrich’s research and listing the empirical support for the benefits of nature
contact, from cognitive development in children to decreased mortality among senior
citizens).
For a discussion of the therapeutic benefits of gardening, especially in urban
environments, see, e.g., Rachel Kaplan, Some Psychological Benefits of Gardening, 5
ENV’T. & BEHAVIOR 145, 145-52 (1973); Rachel Kaplan & Stephen Kaplan, Preference,
Restoration, and Meaningful Action, supra note 35, at 288-90; RACHEL KAPLAN & STEPHEN
KAPLAN, THE EXPERIENCE OF NATURE: A PSYCHOLOGICAL PERSPECTIVE (1989); Barbara
Deutsch Lynch & Rima Brusi, Nature, Memory, and Nation: New York’s Latino Gardens
and Casitas, in URBAN PLACE, supra note 35, at 191, 192-94 (noting the therapeutic effects
of cultivation, in general, and to the New York City Latino population, in particular);
Catherine McGuinn & Paula Diane Relf, A Profile of Juvenile Offenders in a Vocational
Horticulture Curriculum, 11 HORTTECHNOLOGY 427, 430, 433 (July-Sept. 2001) (noting the
success of horticulture rehabilitation-vocational training programs); Susan M. Stuart, Lifting
Spirits: Creating Gardens in California Domestic Violence Shelters, in URBAN PLACE, supra
note 35, at 61, 85 (describing the psychosocial and therapeutic benefits of gardening to
residents and staff of grassroots domestic violence shelters in California); Malve von
Hassell, Community Gardens in New York City: Place, Community, and Individuality, in
URBAN PLACE, supra note 35, at 91, 92 (describing community gardens as not only green
space but as providing opportunities for community life, education, and political action).
573.
Public housing developments provide a number of internal controls on the issues
surrounding selection. For example, residents of public housing developments usually

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American and are among the nation’s most impoverished with
unemployment rates hovering at 93-96.5%.574 While there is always a
danger in extrapolation or generalization,575 and while none of the
researchers inquired about the residents’ encounters with the collateral
consequences of conviction and imprisonment, in general, and with levels
of disenfranchisement and voting frequency and patterns, in particular,
these urban public housing developments represent the types of
neighborhoods and communities likely to experience high concentrations
of disenfranchisement.
In one study, Rebekah Levine Coley, Frances E. Kuo, and William C.
Sullivan determined that
Trees are an important variable in creating sociopetal outdoor spaces –
spaces that attract people to them. The presence of trees in the two
possess rather homogenous characteristics, especially those that have shown to increase
vulnerability to crime, such as income and education. Second, while people who enjoy
nature are likely to choose to live in an area with lots of vegetation and trees, the vast
majority of public housing residents have little choice regarding both the neighborhood in
which they live and the apartment to which they are assigned (although those assigned to a
particular apartment do have the right to accept or reject the placement). Thus, the presence
of green areas does not weigh heavily, if at all, in an individual’s decision to live in public
housing and a particular apartment within the development. Finally, residents play almost no
role in the decision to add or remove trees. Kuo & Sullivan, Does Vegetation Reduce
Crime?, supra note 571, at 351-52 (discussing the homogeneity of the resident population
and the apartment assignment procedures, “there [a]re no a priori reasons to expect a
relationship between the level of vegetation outside an apartment building and the
characteristics of its inhabitants”); Byoung-Suk Kweon, William C. Sullivan, and Angela R.
Wiley, Green Common Spaces and the Social Integration of Inner-City Older Adults, 30
ENV’T & BEHAVIOR 832, 839-40, 848 (Nov. 1998) (discussing assignment procedures, age
distribution of residents, and dearth of opportunities to create or maintain greenery in
common spaces).
574.
See Frances E. Kuo, William C. Sullivan, Rebekah Levine Coley, and Liesette
Brunson, Fertile Ground for Community: Inner-City Neighborhood Common Spaces, 26
AM. J. OF COMMUNITY PSYCHOL. 823, 832-33, 845 (1998) [hereinafter Kuo et al., Fertile
Ground for Community] (noting the average annual household income of residents of Robert
Taylor Homes, as well as the mean age and percentage of male-female, percentage African
American, and percentage unemployed); Kuo & Sullivan, Does Vegetation Reduce Crime?,
supra note 571, at 350.
575.
Kuo and Sullivan note that “[e]ligibility requirements for public housing and some
other forms of public aid favor single mothers. This creates a pressure for families not to list
adult males as official residents (and for these unofficial residents not to participate in
studies about life at [Robert Taylor Homes].” Kuo & Sullivan, Effects of Environment via
Mental Fatigue, supra note 78, at 552 n.2. For an additional discussion of the external
validity of studies conducted at Robert Taylor Homes, see Kuo et al., Fertile Ground for
Community, supra note 574, at 844-46 (discussing the generalizability of their findings and
noting the ways in which Robert Taylor Homes differs from and resembles other
communities in terms of its physical features and resident population).

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public housing developments under study consistently predicted greater
use of outdoor spaces by all people, young and older, as well as
groupings of people consisting of both youth and adults together.576

Aside from simply being pleasurable, Colely, Kuo, and Sullivan
determined that treed spaces could make outdoor areas much safer:
By using and spending time in a specific [outdoor] space, people
develop a sense of territoriality and ownership over the area. They learn
who belongs there and who does not, they are more likely to enforce
codes of conduct, and these behaviors in turn help to decrease the use of
space for criminal activity.577

Perhaps most significantly, they discovered that:
the presence of people outdoors is expected to greatly increase the
surveillance of and control over the outdoor spaces in these areas.
The surveillance of people and activities in poor urban neighborhoods
is important not only in relation to preventing crime, but also in respect
to positive social interactions, especially for children. . . . [T]he social
structures of poor neighborhoods in large urban areas are becoming
increasingly battered and weakened. The historical structures of respect
“old heads”—adults in the neighborhood who watched out for,
disciplined, and befriended children—are largely absent in today’s
urban ghettoes, while the prevalence of single-parent families and
absent and unemployed male figures has contributed to lower levels of
child supervision and concomitant increases in delinquent and
destructive behaviors. Thus, the supervision of children in such areas is
especially desirable. The results of this study indicate that trees draw
mixed groups of children and adults outdoors together. It is likely that
the presence of adults both increases the children’s supervision and also
576.
Coley, Kuo & Sullivan, Where Does Community Grow?, supra note 570, at 486;
see also Kuo et al., Fertile Ground for Community, supra note 574, at 848 (“Greener
common spaces appear to attract people outdoors, increasing opportunities for casual social
encounters among neighbors and fostering the development of neighborhood social ties.”).
577.
Coley, Kuo & Sullivan, Where Does Community Grow?, supra note 570, at 489.
Kuo and Sullivan, in a study of just Ida B. Wells, found that “in poor inner-city
neighborhoods, vegetation can inhibit crime through the following two mechanisms: by
increasing surveillance and by mitigating some of the psychological precursors to violence.”
Kuo & Sullivan, Does Vegetation Reduce Crime?, supra note 571, at 346.
Environmental criminologists and proponents of Crime Prevention Through Environmental
Design (CPTED) assert that “the physical environment can assist in the creation of
perceived zones of territorial influence, which can foster a sense of ‘ownership’ and
therefore proprietary concern in residents. . . . [E]nvironmental design can be utilised to
provide surveillance opportunities for residents and their agents.” Cozens, supra note 46, at
132.

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increases their opportunities to interact personally with adults in their
neighborhood.578

Similarly, in a separate study of just Robert Taylor Homes, Kuo, Sullivan,
and Coley, along with Liesette Brunson, found a correlation between the
amount of vegetation in a common space, and neighborhood social ties
near that space, observing that “compared to residents living adjacent to
relatively barren spaces, individuals living adjacent to greener common
spaces had more social activities . . . knew more of their neighbors . . . and
had stronger feelings of belonging.”579 The notion that “unspectacular,
everyday nearby nature”580—high-canopy trees, low shrubs, and grassy
areas—may be sufficient to attract people outside, thereby increasing social
encounters among neighbors and subsequently fostering higher levels of
social cohesion in the community,581 underscores the importance of

578.
Coley, Kuo & Sullivan, Where Does Community Grow?, supra note 570, at 490
(citations omitted); see also Rachel Kaplan & Stephen Kaplan, supra note 570, at 1487
(“[C]ommunity and trust require places where neighbors can meet to become acquainted
and where surveillance is easily possible.”); Sullivan, Forest, Savanna, City, supra note 77,
at 244 (“[B]y increasing the opportunities for residents to meet and interact, greener
neighborhood spaces facilitate the development and maintenance of neighborhood social
ties.”).
579.
Kuo et al., Fertile Ground for Community, supra note 574, at 843.
580.
Rachel Kaplan & Stephen Kaplan, Preference, Restoration, and Meaningful
Action, supra note 35, at 274-75; see also Frances E. Kuo, Coping with Poverty: Impacts of
Enviroment and Attention in the Inner City, 33 ENV’T & BEHAVIOR 5, 8 (Jan. 2001)
[hereinafter Kuo, Coping with Poverty] (“[T]he rejuvenating effect of nature extends to far
less ‘pure’ forms of nature than wilderness and . . . it results in systematically greater
effectiveness on a wide variety of tasks.”); Kuo et al., Fertile Ground for Community, supra
note 574, at 827-28 (noting that “‘nature,’ ranging from wilderness to a view of trees and
grass in an urban setting, has . . . systematic, positive effects on individuals,” including
reduction in mental fatigue (characterized by difficulty paying attention and irritability),
relief from feelings of stress, and better moods); Jules Pretty and Peggy F. Barlett,
Concluding Remarks: Nature and Health in the Urban Environment, in URBAN PLACE,
supra note 35, at 299, 301 (noting that “everyday, often unspectacular” nature—parks, street
trees, backyard gardens—may help reduce mental fatigue and stress).
Proximity of vegetation to residences appears to be significant. See Kuo et al., Fertile
Ground for Community, supra note 574, at 827, 839 (“[T]he more vegetation associated
with a resident’s apartment and building, the more she socialized with neighbors, the more
familiar with nearby neighbors she was, and the greater her sense of community.”).
581.
See Kuo & Sullivan, Effects of Environment via Mental Fatigue, supra note 78, at
566 (describing it as seemingly implausible, yet a “low dose” of vegetation “has been shown
to have far-reaching and positive effects on a number of . . . important outcomes, including
residents’ management of major life issues and neighborhood social ties” (citations
omitted)); see generally du Plessis, supra note 422, at 34 (“A key element of a sustainable
settlement is its ability to foster social cohesion and provide security for all who live in it.”).

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vegetation both large and small in low-income urban communities582 and
supports Cadora and Tucker’s assertions that reallocating funds from prison
budgets to provide this type of physical infrastructure is money wellspent.583 This finding that treed and grassy areas promote higher levels of
social cohesion in the community, also helps address Professor William
Julius Wilson’s concern that in some housing projects and inner-city
neighborhoods, “residents have difficulty identifying their neighbors. They
are, therefore, less likely to engage in reciprocal guardian behavior. Events
in one part of the block or neighborhood tend to be of little concern to those
residing in other parts.”584
In fact, not only is reinvestment of prison budget funds in urban nature
not a luxury or an inappropriate use of resources, but Byoung-Suk Kweon,
William C. Sullivan and Angela R. Wiley, in another study of just residents
of Robert Taylor Homes—this one involving interviews with older adults
between the ages of 64 and 91585—found that the presence of green areas
582.
According to Kuo and Sullivan, there is a difference between “unspectacular,
everyday nearby nature” and large public parks. In their study on the effects of nearby
nature on attentional functioning, they conclude that “geographic distribution of natural
areas matters. Although large central or regional parks are clearly important components of
urban design . . . a few major parks are not enough,” and concluding, “cities should be
designed with nature at every doorstep.” Kuo & Sullivan, Effects of Environment via Mental
Fatigue, supra note 78, at 566-67.
583.
See generally Kweon, Sullivan & Wiley, supra note 573, at 852-53 (stating that
planting trees in outdoor common spaces in public housing developments is a relatively
inexpensive way to improve social interaction, and concluding that “[a]lthough creating
[outdoor common spaces with trees] will surely cost more in the short term than not
providing trees, grass, and places to sit, the benefits resulting from such designs will
certainly outweigh the costs”).
584.
WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE
UNDERCLASS, AND PUBLIC POLICY 38 (1987).
585.
Kweon, Sullivan and Wiley focused solely on older residents at Robert Taylor
Homes. As their method of data collection, they conducted structured interviews, each
lasting from 60 to 90 minutes. Kweon, Sullivan & Wiley, supra note 573, at 838-41. In
comparison, Coley, Kuo and Sullivan’s data collection occurred on multiple days in June–a
month amenable to outdoor activities–during the most popular times to be outdoors
according to residents and resident managers. The data collection method they employed is
known as “observational walk-bys”–walking through the housing developments and
recording information on the presence of people and trees in outdoor spaces. Coley, Kuo &
Sullivan, Where Does Community Grow?, supra note 570, 477-78. Kuo et al. interviewed
145 residents of Robert Taylor Homes during the summer and early fall months. Each
resident was interviewed for two forty-five minute sessions with the two parts of the
interviews conducted within two weeks of each other. Kuo et al., Fertile Ground for
Community, supra note 574, at 832-33; Sullivan, Forest, Savanna, City, supra note 77, at
243-44. This same research method was utilized by Kuo and Sullivan in Kuo & Sullivan,
Effects of Environment via Mental Fatigue, supra note 78, at 552. Two other studies
conducted by the Human-Environment Research Laboratory involved structured interviews

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and the subsequent social interaction between neighbors could actually
decrease the burden on public social agencies.586 Similarly, Professors
Jules Pretty and Peggy F. Barlett have noted that “[d]eath rates for
individuals with low levels of social integration are higher when facing a
stroke or coronary disease.”587 The effect of green areas on the health of
older individuals and subsequently public social agencies is true not only
for older adults, as Kweon, Sullivan and Wiley, as well as Pretty and
Barlett, conclude, but for younger individuals too. For as Helen Epstein588
writes in her New York Times Magazine article, Enough to Make You Sick,
“[p]oor parents, terrified that their kids will be killed on the street, tend to
keep them inside, with the windows shut and the TV on, where they are
constantly exposed to contaminants in indoor air, which some researchers
believe can be as damaging as industrial pollution.”589 Aside from the
exposure to indoor air pollution, which is dangerous in and of itself,
keeping kids inside also promoted a sedentary lifestyle, which can carry
with it a whole slew of other health problems. Epstein contends: “Not only
are sedentary, overweight kids more at risk for asthma, but kids with severe
and attentional capacity tests of residents during summer and fall months, and Chicago
Police Department reports for each address at Ida B. Wells in comparison with density of
vegetation. Kuo, Coping with Poverty, supra note 580, at 10, 12-13; Kuo & Sullivan, Does
Vegetation Reduce Crime?, supra note 571, at 352-53.
586.
Kweon, Sullivan, & Wiley, supra note 573, at 854 (concluding that “Supportive
interaction among neighbors seems to reduce the burden on public social agencies,”
observing, “[i]f green outdoor common spaces facilitate supportive relationships among
neighbors in a community, then perhaps public housing managers should provide more
green common spaces or turn vacant lots into livable public spaces. Doing so could help
improve older inner-city residents’ social support and reduce the burden on public social
service agencies.” (citation omitted)); see also Kuo, Coping with Poverty, supra note 580, at
30 (“[G]reening is a low cost intervention in comparison with most social service
programs.”).
587.
Pretty & Barlett, supra note 580, at 303.
588.
Helen Epstein, who writes frequently about public health, is not a member of the
Human-Environment Research Laboratory.
589.
Helen Epstein, Ghetto Miasma; Enough to Make You Sick?, N.Y. TIMES, Oct. 12,
2003, § 6 (Magazine), at 75 ; see generally Kuo et al., Fertile Ground for Community, supra
note 574, at 826 (“High-crime settings are associated with neighbors staying home and
avoiding local social contact” (citations omitted)). According to Epstein, the stress from
living in a high crime area also has serious health repercussions:
Chronic stress also signals the body to accumulate abdominal fat around the
waistline, which is more dangerous than fat that lies under the skin, or
subcutaneous fat. Abdominal fat worsens many chronic health problems,
including diabetes and heart disease, whereas subcutaneous fat does not. It’s as if
stress hormones were like lye, powerful stuff that in small amounts is useful for
cleaning the stove, but that in large amounts will eat right through the floor.
Epstein, supra.

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asthma tend to exercise less and are thus prone to obesity. Mothers trying
to protect their kids from crime may not realize they are putting their future
health at risk.”590 While such health problems are troubling in and of
themselves, many individuals in poor, crime-ridden urban communities
lack health insurance or access to health care facilities to assist them in
managing their diseases.591 Without primary care physicians, such
individuals frequently turn to emergency rooms as hospitals for care, which
can further burden both the poor families and the financially-strapped
public hospitals. As Kuo and Sullivan note regarding the attentional
demand of poverty: “Underinsured and having no financial cushion against
setbacks, even a minor temporary trauma such as a child’s illness can have
far-reaching effects, eventually necessitating major readjustments in life,
family, and work domains.”592 All of this is not to suggest that green areas
are a panacea and could replace the need for health care facilities in lowincome urban neighborhoods.593 But neither should one conclude that
green spaces are merely an “extra” and that “justice reinvestment” be
confined to schools, healthcare facilities, and the type of programming and
training discussed above. Indeed, as Pretty and Barlett assert, “green spaces
and nearby nature should be seen as a fundamental health source.”594
To recap: the conclusions of the Human-Environment Research
Laboratory researchers and others mentioned in this Section stress the
importance of urban nature in fostering social cohesion in the community
(as well as in reducing aggressive and violent behavior, and in lowering
levels of crime).595 The research of Sampson, Raudenbush, and Earls in
590.
591.

Epstein, supra note 589.
See Cole, supra note 4, at 630 (“[W]hile they live with the greatest dangers, poor
people and people of color have the least access to health care and often can not get it at
all.”).
592.
Kuo & Sullivan, Effects of Environment via Mental Fatigue, supra note 78, at
548. According to Kuo and Sullivan, crime, the lack of adequate space and facilities in
public housing, and the lack of natural settings may create its own health issue–chronic high
levels of mental fatigue. See id.
593.
See generally Kuo & Sullivan, Does Vegetation Reduce Crime?, supra note 571,
at 363 (“Ultimately, the largest reductions in crime will come from strategies that address
the factors underlying crime (e.g., intense poverty and the availability of guns.”).
594.
Pretty & Barlett, supra note 580, at 305 (emphasis added).
595.
Kuo and Sullivan note that children of violent families are more likely to grow up
to be violent than children from nonviolent families, and that this is true both for childvictims of abuse and children who witnessed abuse. Thus, they conclude, “identifying
possible avenues to reducing domestic violence may pay benefits for generations to come.”
Kuo & Sullivan, Effects of Environment via Mental Fatigue, supra note 78, at 564; see also
NEWHAM, supra note 541 (“Crime and violence are often products of environments where
competition and a lack of caring dominate. People who have grown up as children in
environmental contexts free from crime and violent [sic] are more likely to be amenable to

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Part II.B.3.b emphasized how the collective efficacy of neighborhood
residents is a crucial way in which urban neighborhoods reduce instances
of crime and violence. Combining these findings, one may wonder whether
the key lies in the presence of urban nature alone. In other words, if
outdoor green common spaces fosters social cohesion and reduces crime
and violence, then why should environmental organizations devote their
attention to fighting criminal disenfranchisement policies? Granted, these
laws and policies have been linked to recidivism and crime and
subsequently to environmental ills, but if there are “green” ways of
reducing recidivism and crime, should not the environmental organizations
confine their efforts to those “green” ways (if they are going to consider
and enter the realm of social and criminal justice at all)? And when one
considers the positive psychological impact of nature and Professors
Rachel and Stephen Kaplan’s assertions that “[i]f people are less frustrated,
they are more likely to be civil with each other, to be cooperative and
helpful, and perhaps even to take care of their environment,”596 the
argument in favor of environmental groups jumping into the battle against
criminal disenfranchisement may appear even less compelling.
Although this Author would certainly endorse efforts by both
governmental and non-profit organizations to create more urban spaces
with trees, grass and shrubbery, these efforts are insufficient by themselves.
In a separate article, Sampson writes that “social networks foster the
conditions under which collective efficacy may flourish, but they are not
sufficient for the exercise of control.”597 According to Sampson, the social
“networks have to be activated to be ultimately meaningful.”598 While
there are likely a number of ways to trigger these social networks, recall
Mauer’s remarks on the communal nature of voting: “Voting as a civic
duty is a task we engage in with our families and communities. Family
members often talk of electoral prospects at home, drive to the polls
altruism than those who view the world with mistrust and fear.”); see generally John C.
Dernbach, Sustainable Development: Now More Than Ever, in STUMBLING TOWARD
SUSTAINABILITY, supra note 19, at 45, 47 (“Social and economic development are
impossible in the absence of peace.”).
596.
Rachel Kaplan & Stephen Kaplan, Preference, Restoration, and Meaningful
Action, supra note 35, at 272 (emphasis added); see also Jodi Kushins & Avi Brisman,
Learning from Our Learning Spaces: A Portrait of 695 Park Avenue, 58 ART EDUCATION
33, 34 (Jan. 2005) (arguing that “the extent to which one is aware of and interacts with one’s
surroundings impacts the degree to which one respects that environment”); see generally
Pretty & Barlett, supra note 580, at 308 (“People seek to make a social contribution and in
doing so come to discover a new relationship with place. For others, attachment to the place
or type of nature comes first, and efforts to defend them come later.”).
597.
Sampson, Collective Efficacy and Community Safety, supra note 155, at 108
(emphasis added).
598.
Id.

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together, and see their neighbors there.”599 With Sampson’s and Mauer’s
ideas in mind, then, this Author proposes that if (another) socially cohesive
and crime-reducing activity—voting—were in place, there might be (an)
even greater (likelihood for) informal social control than with just an
increase in urban nature. Greater (opportunities for) public participation
and an increase in urban nature might result in less crime600 and fewer of
the negative environmental impacts described above.
Given the comments throughout Part II regarding the frustration
disenfranchisement may bring to an offender or ex-offender,601 efforts to
re-enfranchise the disenfranchised or to scale back disenfranchisement
policies prospectively may also help create the civility and cooperation that
the Kaplans claim may result in ownership, responsibility, and stewardship
of one’s environment. Taken one step further, the union of Cadora and
Tucker’s justice reinvestment efforts to formulate some of the social and
physical infrastructure needed in blighted neighborhoods with endeavors to
remove the collateral consequence of criminal disenfranchisement could
result in a scenario in which crime decreases to the point where public
599.
600.

See Mauer, Thinking About Prison, supra note 410, at 616.
Note that Kweon et al considered whether they had “conceptualized backward the
relationship between exposure to green common spaces and social integration,” i.e., whether
high levels of social integration lead to greater use of and exposure to outdoor green areas
because such individuals are drawn to these places to converse and interact with their
friends, rather than the other way around. Kweon, Sullivan & Wiley, supra note 573, at 847.
Although they could not definitively determine the direction of the relationship, they
speculated that the lack of indoor meeting places in public housing developments leads to
meeting in outdoor spaces. Id. at 848. They also noted previous research that has found that
“[t]he mere presence of common spaces seems not enough to promote social ties. In innercity settings, outdoor common spaces are too often urban deserts–barren, uninviting, and
uncomfortable.” Id. at 836 (citations omitted). The presence of trees and grass, however, “is
related to residents’ preference for outdoor common spaces, and their preference is one
predictor of the use of outdoor common spaces.” Id. This Author contends that by increasing
both the availability of outdoor green areas and creating another means of interaction
(voting) and subject of conversation (elections and politics), then social cohesion and
informal social control will increase.
Kuo and Sullivan found that vegetation is significantly and negatively related to
each of the measures of crime, i.e., the greener a building’s surroundings are, the fewer total
crimes (including both property and violent crimes). Kuo & Sullivan, Does Vegetation
Reduce Crime?, supra note 571, at 354. They then contemplated whether vegetation might
simply displace crime, i.e., that vegetation in one part of an inner-city neighborhood might
simply increase crime in another part of that neighborhood. Id. at 362-63. Although they left
open this question for further study, they speculated that vegetation might inhibit impulsive
violent crimes associated with the irritability and cognitive deficits characteristic of mental
fatigue without displacing this kind of crime to other areas, but that vegetation might shift
premeditated property crimes, such as burglary, to more vulnerable areas. Id at 363.
601.
See supra discussion Part II.3.

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funds are available for initial investment, not justice reinvestment.
C. Disenfranchisement’s Effect on Elections, Appointments and the
Environment
The previous Section has attempted to highlight how the crimeenvironment connection is a two-way street: crime and the fear of crime
may have an adverse impact on the environment (because of rural prison
growth, sprawl and the diversion of attention and funds away from
environmental issues), but the lack of urban nature may also create some of
the conditions that help make crime a more common occurrence. Despite
this relationship and the negative correlation between voting and crime,
environmental advocates and organizations may still be wary of devoting
their time, energy and resources to this kind of social justice issue. First,
MEOs may fear alienating their donors (both corporate and individuals)
who have less awareness, understanding or sympathy for the plight of
disenfranchised offenders and ex-offenders.602 As Philip Shabecoff writes:
Today’s environmentalists are not indifferent to injustices such as
poverty and racism. Many have a deep personal concern. But involved
in the pressing, sometimes overwhelming task of dealing with
environmental crises, they push aside the issues of social and economic
equity as someone else’s immediate business. At least some of the
organizations hold back from broader social activism because they fear
it would jeopardize their funding from corporations or government
sources or alienate their more conservative constituencies.
....
Widening their agenda in this way will be difficult for the national
environmental organizations. Many of them draw much of their
membership and financial support from the more well-to-do people or
from corporations, where support for social activism tends to be thin or
negative.603

Such concerns are understandable. With the broad-scale proliferation of
non-profit organizations, even the more established ones must enter the

602.
MEOs may also fear alienating their allies and friends in government. See
generally Freudenberg & Steinsapir, supra note 435, at 33 (“Unlike grassroots activists,
these professionals [lawyers and scientists at MEOs] have a stake in preserving their
credibility with other experts and with government decision makers.”).
603.
SHABECOFF, supra note 2, at 284-85; see also Brisman, Double Whammy, supra
note 90, at 474-75 (“[E]nvironmental organizations might fear that if they promote changes
in the laws governing ex-offenders, they will lose the financial support of people who
couple their environmental advocacy with a tough-on-crime approach.”).

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competition for grants and funding.604 Thus, many organizations must walk
the fine line of distinguishing themselves from other organizations so as to
attract financial support,605 but not rocking the boat or muddying the waters
too much that they lose the support necessary for their continued existence.
Similarly, organizations in general and non-profit organizations in
particular have a strong sense of self-preservation. To illustrate, if nonprofit organization A (“A”) veers from its original objective and crosses
into the domain of non-profit organization B (“B”), B may feel that its
efficacy is being questioned and that its existence is being threatened and
thus might avoid joint efforts at combating the same cause.606
Alternatively, A might wish to leave its realm or area of specialty for any
number of reasons—importance of a more distantly related issue, growth in
number of similarly-oriented organizations607—but may choose not to in
order to avoid appearing irrelevant608 or to avoid conveying the message

604.
See Low, supra note 78, at 48 (noting that, as a rule, “[n]onprofits compete with
each other for donations of time and money”).
605.
See generally SHABECOFF, supra note 2, at 262 (“[N]ational environmental groups
are too concerned about publicizing themselves to raise money and membership to be able
to cooperate in major legislative campaigns.”).
606.
See WRIGHT, supra note 45, at 96 (“Organizational self-interest intensifies as an
organization is threatened in some way.”). The reverse may also occur, where B feels
sufficiently threatened, to the point where it feels its only options are to join forces or risk
collapse. See Peter M. Blau and W. Richard Scott, Organizational Development, in
COMPLEX ORGANIZATIONS AND THEIR ENVIRONMENTS 167, 173 (Merlin B. Brinkerhoff &
Phillip R. Kunz, eds., 1972) (“A crucial factor seems to be the organization’s relation to its
environment. As long as its very survival is threatened by a hostile environment, its officers
will seek to strengthen the organization by building up its administrative machinery and
searching for external sources of support.”).
607.
Cf. Costain & Lester, supra note 4, at 30 (“The universe of environmental groups
has grown to encompass a vast range of organizations from the sedate real estate brokers in
the Nature Conservancy to the theatrical rhetoric of Earth First!”); Dunlap & Mertig, supra
note 450, at 6 (“A fundamental change in environmentalism since 1970 has been the rapid
increase in the number and prominence of local grassroots organizations.”).
608.
See, e.g., DAVE FOREMAN, CONFESSIONS OF AN ECO-WARRIOR 204-06 (1991)
(bemoaning the fact that MEOs often become more interested in ensuring their viability than
in following through with their environmental missions–”[a]s organizational maintenance
becomes the primary goal of a group, it begins to compete with allied groups for
recognition, money, and status,” and noting, “[i]nstead of trying to truly win a battle, the
group merely wants to get credit for a victory, no matter how hollow it may be”); Mitchell,
Mertig & Dunlap, supra note 4, at 23 (“There has been a clear trend toward increased
professionalization among the leaders and staff of the national environmental organizations
over the past two decades. . . . Increased professionalization also carries with it the dangers
of routinazation in advocacy, careerism on the part of staff members, and passivity on the
part of volunteers, all of which have been detected in the national organizations.”).

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that its original objective is no longer a pressing concern.609 A may also opt
not to expand its goals if the political climate, as mentioned in Part III.A, is
such that the organization feels it must protect its political achievements.
While it may be difficult for organizations to buck their self-preservation
tendencies, especially if they believe that the current political climate
requires that they “protect their policy bargaining positions and retain past
policy gains,” it is because the political climate is so susceptible to
change610 and influence that MEOs should consider broadening their
agendas to include issues of criminal disenfranchisement.611 As discussed
in Part II.B.3.a, had disenfranchised offenders and ex-offenders been
permitted to vote in the 2000 presidential election—or even just those in
Florida—“Ozone Man”612 (Al Gore) would have defeated “Oil Boy”613
(George Bush). Apart from the monikers and Gore’s research and writing
on environmental issues,614 the question is whether a Gore presidency
would have had a positive environmental impact and, if so, to what extent.
In other words, aside from the level of personal interest in environmental
issues, the question is whether the president can significantly contribute to
environmental degradation or protection.
While there is obviously no way to quantify the difference between a
Gore presidency and a Bush presidency, perhaps the best way to ascertain
609.
See generally Riley E. Dunlap, Public Opinion and Environmental Policy, supra
note 450, at 90 (describing a decline in the public’s attention to an issue in part “from the
sense that government is taking care of the problem and there is no onger any need to worry
about it”).
610.
See generally SATTERFIELD, supra note 9, at 64 (discussing how “advantage in
politics is invariably fleeting”).
611.
With the exception of the Sierra Club, “[l]arge-membership environmental groups
have been slow[] to make electoral endorsements.” Ingram, Colnic & Mann, supra note 433,
at 134-35. This Article does not take a position as to whether environmental organizations
should endorse particular candidates. This Article simply suggests that liberalizing criminal
disenfranchisement policies will more often than not result in electoral victories for
candidates that environmental organizations may prefer.
612.
In the 1992 presidential campaign, President George H.W. Bush called then-Vice
Presidential candidate, Al Gore, “Ozone Man,” in reference to his devotion to
environmental causes. See, e.g., Riley E. Dunlap, Public Opinion and Environmental Policy,
supra note 450, at 107.
613.
Although this Author is unaware of the public use of the nickname “Oil Boy” by a
politician to refer to President George W. Bush, a number of online sources and blogs have
referred to him as such. See, e.g., Posting of “feckless” to The Huffington Post: The Blog,
http://www.huffingtonpost.com/norman-horowitz/duh_b_19759.html (Apr. 25, 2006,
12:38pm); “mojo,” Ballot: If Bush Were a Super-Hero in a Movie, What Name Would He
Have?, http://www.bestandworst.com/v/?id=86595 (Apr. 25, 2006).
614.
See ALBERT GORE, EARTH IN THE BALANCE: ECOLOGY AND THE HUMAN SPIRIT
(1992); ALBERT GORE, AN INCONVENIENT TRUTH: THE PLANETARY EMERGENCY OF GLOBAL
WARMING AND WHAT WE CAN DO ABOUT IT (2006).

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the impact of George W. Bush’s presidency on the environment is to
examine the extent and significance of previous administrations’
environmental sympathies. Michael McCloskey, former Chairman of the
Sierra Club, describes the ebb and flow of the relationship between
environmentalists and past administrations:
Despite initial skepticism, environmentalists came to accept progress
under the Nixon and Ford administrations as normal, and they were
elated by the strong commitment they perceived in the Carter
administration (though this changed in the end). However, the strong
hostility of the Reagan administration, which persisted for 8 years
(although the hard edge was taken off at the end of the first term),
stunned the movement. Not only did the federal government no longer
propose new initiatives, it no longer even tried to maintain the programs
of the past. . . . Normal diplomatic relations with administration figures
virtually ceased.615

Ingram, Colnic and Mann further explain that under the Carter
administration, environmental groups gained “inside access to the
executive and legislative branches. The appointment of a number of
environmentalists in the Environmental Protection Agency, the Department
of the Interior, the Justice Department provided groups with built-in
access.”616 With President Ronald Reagan’s inauguration, however, this
period of inside access that President Carter had afforded ended.617 As rural
sociologist Riley E. Dunlap explicates:
The federal government’s orientation toward environmental protection
changed considerably when Ronald Reagan took office in 1980.
Environmentalists were wary of President Reagan because of his
general emphasis on “deregulating” the economy, and because of his
tendency to view environmental regulations in particular as hampering
economic growth and as largely unnecessary. The Reagan
administration quickly fanned the fears of environmentalists, changing
course after a decade of generally bipartisan commitment to federal
environmental protection. The Council on Environmental Quality was
virtually dismantled, the budget of the Environmental Protection
Agency was severely cut, and the enforcement of existing
environmental regulations was curtailed by administrative review,
budgetary restrictions, and staff changes. It was the latter that received
the most attention, as the appointment of Anne Gorsuch as director of

615.
616.

McCloskey, supra note 440, at 81.
Ingram, Colnic & Mann, supra note 433, at 128-29. Costain and Lester point “to
the late 1960s and early 1970s as the time when old and new environmentalists were able to
break into the closed circles of policy making.” Costain & Lester, supra note 4, at 31.
617.
Ingram, Colnic & Mann, supra note 433, at 129.

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the EPA and James Watt as secretary of the Department of Interior
symbolized the administration’s commitment to changing the thrust of
environmental policy, with Gorsuch easing the burden of environmental
regulations on industry and Watt opening up public lands to increased
resource development.618

In addition to budget cuts, which limited the ability of enforcement
agencies to bring new cases and enact new rules, and the appointment of
administrators with anti-regulatory philosophies,619 both President Reagan
and the first President Bush (albeit with slightly less zeal) appointed federal
judges who shared their deregulatory ideologies.620
In an early 1990s study seeking to determine the influence that President
Reagan’s judicial appointments to the courts of appeals have had on
environmental policymaking, current Federal Trade Commissioner William
E. Kovacic, then a professor at George Mason University School of Law,
examined the voting patterns of the appointees of Presidents Carter and
Reagan (and to a slightly lesser extent, the appointees of President George
H.W. Bush) on the federal courts of appeals in Clean Air Act and Clean
Water Act cases.621 In 241 Clean Air Act and Clean Water Act cases
decided between January 1977 and November 1990, Kovacic found that: 1)
in all votes cast by Carter and Reagan appointees, a higher percentage of
Carter appointees supported positions with burden-increasing consequences
for entities whose emission and discharge activities are governed by the
Clean Air Act and Clean Water Act, whereas a higher percentage of
Reagan appointees endorsed outcomes with burden-reducing effects;622 and
2) in opinions authored by Carter or Reagan appointees, a higher
618.
Riley E. Dunlap, Public Opinion and Environmental Policy, supra note 450, at
87-88 (citations omitted); see also Mitchell, Mertig & Dunlap, supra note 4, at 20 (“During
the Reagan era, the role that environmental organizations traditionally played in
administrative decision making was almost completely circumvented.”); William E.
Kovacic, The Reagan Judiciary and Environmental Policy: The Impact of Appointments to
the Federal Courts of Appeals, 18 B.C. ENVTL. AFF. L. REV. 669, 674 (1991) (“The Reagan
administration immediately focused upon federal environmental protection policy in its
regulatory reform efforts.”); see generally ENVTL. LAW INST., ENDANGERED ENVTL. LAWS
PROGRAM,
BACKGROUND
PAPER
3
(2003),
http://www.endangeredlaws.org/
pdf/Background_paper.pdf (discussing Reagan-appointed EPA Administrators Anne
Gorsuch and William Ruckelshaus, as well as Secretary of the Interior James Watt, and
President H.W. Bush’s EPA Administrator, William Reilly).
619.
Kovacic, supra note 618, at 712.
620.
See id. at 675-76 (noting that presidents have often used judicial appointments in
the hopes of achieving certain policy goals, but highlighting the fervor with which President
Reagan attempted to alter the judiciary and craft ideological uniformity).
621.
For a discussion of the methodology used to select and examine environmental
law cases in which Carter- and Reagan-appointed judges participated, see id. at 680-95.
622.
Id. at 697.

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percentage of Carter appointees’ majority opinions endorsed positions with
burden-increasing consequences, whereas a higher percentage of Reagan
appointees’ majority opinions endorsed positions with burden-reducing
effects.623
Because, as mentioned in Part III.A, the Clean Air Act and the Clean
Water Act encourages private parties to monitor compliance with emission
and discharge requirements and to bring suit when governmental agencies
neglect their statutory and regulatory obligations to punish violations of
pollution abatement requirements, Kovacic also examined how Carter- and
Reagan-appointed judges interpreted statutory provisions regarding
standing, remedies, and reimbursement for attorneys’ fees.624 Noting that
“the treatment of standing and remedial issues in evaluating suits by private
parties can be as important as the choice of liability standards in
establishing the impact of a specific regulatory system,”625 he found that
Reagan appointees are more inclined “to use procedural and remedial
screens involving standing, damages, and attorneys’ fees to reduce
compliance burdens.”626 Private parties, then, have and likely will continue
to encounter “greater restrictions, such as harsher standing and
jurisdictional tests, on their ability to raise and sustain Clean Air Act and
Clean Water Act challenges. At the same time, the attractiveness of
bringing suits will decline as prospective plaintiffs encounter additional
difficulty in establishing entitlements to damages and in demonstrating
eligibility to obtain attorneys’ fees.”627 Thus, it is entirely possible that
individuals who have suffered from Clean Air or Clean Water Act
violations have either chosen not to bring suit or have been unable to secure
representation out of concern that their claims will not be adjudicated
fairly.
Kovacic’s study of the voting differences between Carter and Reagan or
Bush appointees reveals an even greater and more disturbing ideological
divide in the context of twenty-six Resource Conservation and Recovery
Act cases involving thirty-six votes in the United States Court of Appeals
for the District of Columbia Circuit—often considered the second most

623.
Id. at 697-98. Kovacic also examined Clean Air Act and Clean Water Act cases in
which Carter and Reagan appointees sat on the same panel. Id. at 698-99. He found that
Carter and Reagan judges cast identical votes in 87.5% of the cases in which appointees of
both Presidents sat on the same panel, and suggested that this could be due to underlying
similarity of perspectives, the persuasive influence of specific judges in reaching certain
results, a desire for consensus, or some combination thereof. Id. at 699.
624.
Id. at 705-06.
625.
Id. at 706.
626.
Id. at 700.
627.
Id. at 708.

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important court in the country628 because of its exclusive or concurrent
jurisdiction under many environmental statutes.629 Kovacic found that
Carter-appointed judges supported burden-increasing outcomes in twentyseven instances (75%) and voted in support of burden-reducing results only
nine times (25%).630 Reagan or Bush appointees, on the other hand,
endorsed burden-increasing positions in only twelve instances (33.3%) and
burden-reducing outcomes twenty-four times (66.6%).631 Thus, these
RCRA cases, in addition to the Clean Air and Clean Water Act cases,
suggest that the Reagan appointees to the federal courts of appeals have a
greater tendency than Carter appointees to adopt positions that would
reduce the burden of compliance with environmental statutes.632 Because
federal appointments are for life, many of these judges have continued to
vote either directly or indirectly (e.g., with high hurdles for standing) in
favor of reduced governmental regulation in Clean Air and Clean Water
Act cases, as well as in RCRA litigation. Finally, while judges frequently
contend that they interpret the law irrespective of the judicial philosophies
of the presidents who appointed them or of their fellow judges—and,
indeed, many do succeed in doing so—judges are not above influence and
are often swayed by their colleagues. As Professor Cass R. Sunstein argues:
If accompanied by two other judges appointed by a Republican
president, a Republican-appointed judge is especially likely to vote
according to conservative stereotypes—to invalidate environmental
regulations, to strike down affirmative action programs or campaign
finance laws, and to reject claims of discrimination made by women and
handicapped people. The same pattern holds for Democrat-appointed
judges, who are far more likely to vote according to liberal stereotypes
if accompanied by two other Democratic appointees. In this way, group
influences create ideological amplification, so that a judge’s ideological
inclinations are magnified by sitting with two other judges appointed by
a president of the same political party.633

628.
See, e.g., Editorial, An Unqualified Judicial Nominee, N.Y. TIMES, May 3, 2006,
at A24; CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT 169 (2003).
629.
For example, the D.C. Circuit has exclusive jurisdiction over the Resource
Conservation and Recovery Act (42 U.S.C. § 6976(a)(1)); the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) (42
U.S.C. § 9613(a)); the Clean Air Act (42 U.S.C. § 7607(b)(1)); as well as national primary
drinking water regulations (42 U.S.C. § 300j-7(a)(1)). The D.C. Court also hears many of
the cases challenging environmental rulings and regulations issued by the E.P.A., the
Department of the Interior, and other executive branch agencies.
630.
Kovacic, supra note 618, at 703.
631.
Id.
632.
Id. at 713.
633.
SUNSTEIN, supra note 628, at 4

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But, as Sunstein further contends, another form of social influence occurs:
Sitting with two judges from a different party, judges show ideological
dampening. Sitting with two Democrats, an individual Republican is
often far less likely to vote in the stereotypically conservative fashion
than an individual Republican who sits with one Republican and one
Democrat. This is a conformity effect. The same is true for Democratic
judges, whose ideological tendencies are significantly dampened when
sitting with two Republicans. . . . [A] Democrat sitting with two
Republicans often tends to vote like the median Republican, whereas a
Republican sitting with two Democrats often tends to vote like the
median Democrat.634

This is not to bemoan Carter’s loss in the 1980 presidential election,
Democratic candidate Walter F. Mondale’s loss in the 1984 election, or
Democratic candidate Michael Dukakis’s loss in the 1988 election, nor is it
to suggest that the United States as a whole and the environment in
particular would be in a better position with a unanimously
environmentally conscious federal judiciary. As Sunstein contends and as
this Author would strongly agree, “[o]rganizations and nations are far more
likely to prosper if they welcome dissent and promote openness. Wellfunctioning societies benefit from a wide range of views; their citizens do
not live in gated communities or echo chambers.”635 The point here is
simply that the degree to which a president holds environmental
sensibilities may impact his choice of federal judges. Such choices are
relevant not only in terms of the tendency to vote in favor of burdenenhancing or burden-reducing compliance with environmental statutes, but
in terms of influence over or by other judges on the same panel. In other
words, if an administration holds environmentally friendly viewpoints, the
effect will likely “trickle down,” to use a Reagan phrase, or permeate, the
judiciary long after the president has left office.
With President George H.W. Bush’s loss to William Jefferson Clinton in
the 1992 election, presidential attitudes towards environmental regulation
changed again, resembling those of the Carter Administration. As Ingram,
Colnic and Mann observed at the beginning of the Clinton Administration:
The Clinton administration, under the stewardship of avowed
environmentalists such as Vice President Al Gore and Secretary of the
Interior Bruce Babbitt, changed access once again. To illustrate the
improved built-in access of environmental groups, the success of the
NRDC [(National Resources Defense Council)] in garnering
administration appointments is instructive. Former NRDC staff

634.
635.

Id. at 167.
Id. at 210-11.

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members are now serving in the Energy Department, National Security
Council, EPA, and the Agency for International Development.636

A Gore presidency would likely have perpetuated this access of
environmental groups. One could also safely wager that a Gore
administration would not have cut funds for the E.P.A. or for the openspace program, the Land and Water Conservation Fund, as the 2006
appropriations bill for the Interior Department and E.P.A. has done.637 Nor
would Gore have stripped the Tongass National Forest of protection against
clear-cutting638 or incurred criticisms from federal agency employees for
allowing politics or industry pressure to trump science on issues of climate
change, stem cell research and the use of toxic chemicals in agricultural
pesticides.639 In addition, because, as conservative columnist George F.
Will remarks, “‘all presidents, at least since John Adams,’ have rewarded
friends and handicapped adversaries,”640 it is unlikely that Gore would
have appointed virulently anti-regulatory administrators, such as Gale A.
Norton, a pupil of James Watt, who served as President George W. Bush’s
interior secretary for five years, and Michael O. Leavitt, the former
Governor of Utah, who served as Administrator of the EPA after Christine
Todd Whitman’s resignation and before President Bush tapped him to
succeed Tommy Thompson as Secretary of Health and Human Services.641
Norton drew criticism for her close ties to the oil, natural gas and mining
industries, her support of drilling in the Arctic National Wildlife Refuge,
her administration of the Endangered Species Act, her handling of trust
money for Native American tribes, and her overall philosophy towards
national parks—one which favored recreational use over conservation and
one which resulted in the return of snowmobiles to Yellowstone National

636.
637.

Ingram, Colnic & Mann, supra note 433, at 130.
See Editorial, Environmental Battles, N.Y. TIMES, May 17, 2006, at A22 (noting
how the appropriations bill would cut funds to the Land and Water Conservation Fund to
$26.8 million–a far cry from the $900 million/year that President Bush once promised).
638.
Id.
639.
Michael Janofsky, Union Leaders Say E.P.A. Bends to Political Pressure, N.Y.
TIMES, Aug. 2, 2006, at A13 (reporting that thousands of staff scientists at the E.P.A. have
alleged that E.P.A. management has ignored the environmental and human health risks of
organophosphates and carbamates in agricultural pesticides).
640.
George F. Will, An Analysis of Roveology, NEWSWEEK, July 17, 2006, at 70
(quoting Tom Hamburger and Peter Wallsten of the Los Angeles Times).
641.
See, e.g., Editorial, Gale Norton Resigns, N.Y. TIMES, Mar. 12, 2006, § 4, at 11;
Editorial, Lands Worth Leaving Alone, N.Y. TIMES, Nov. 14, 2003, at A28; Jennifer 8. Lee,
Democrats End Effort to Block Bush’s Choice To Lead E.P.A., N.Y. TIMES, Oct. 28, 2003, at
A23; Matthew L. Wald, Key Player For President Is Resigning At Interior, N.Y. TIMES,
Mar. 11, 2006, at A16.

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Park.642 During her tenure, Norton renounced her statutory authority to
recommend lands for wilderness protection and, in a secret deal with thenGovernor Leavitt, removed from federal protection 2.6 million acres of
land in Utah that Babbitt had designated as wilderness and thus off-limits
to commercial development.643
The judicial landscape would also have been different with a Gore
presidency. Most notably, Gore likely would have appointed individuals
other than John G. Roberts, Jr. and Samuel A. Alito, Jr. to serve as Chief
Justice and Associate Justice respectively of the United States Supreme
Court,644 although one could make a plausible argument that Sandra Day
O’Connor might not have retired had a Democrat been in power in 2005.
Predicting how justices will vote is an obviously risky endeavor.
Conservatives, for example, still cry “No more Souters” in expression of
their disappointment with President George H.W. Bush’s appointment of
Justice David H. Souter, who has adopted a far less conservative approach
since his appointment to the nation’s highest bench.645 Thus, while there is
no guarantee whom Gore would have appointed had the same vacancies
been available to him and how those individuals would have voted, one
could speculate that Gore appointees might not have voiced quite the same
level of agreement with the Court’s most right-leaning members. For
example, Chief Justice Roberts and Justice Alito frequently regard cases in
the same light as Justices Scalia and Thomas, voting in agreement with
them between 77.5 and 84% of the time, voting together 88% of the time,
and displaying “the highest agreement rate of any two justices in the
court’s nonunanimous cases.”646
642.
643.

See Wald, supra note 641; see also Gale Norton Resigns, supra note 641.
See Wald, supra note 641; see also Gale Norton Resigns, supra note 641; Lands
Worth Leaving Alone, supra note 641. In the three years since this deal, the Bureau of Land
Management has sold oil and gas leases on some of these lands as part of an energy policy
built on aggressive exploration and drilling. But in August 2006, a federal district court in
Utah ruled that leases on sixteen parcels had violated environmental law. See Editorial, A
Reprieve For Public Lands, N.Y. TIMES, Aug. 8, 2006, at A16.
644.
For a discussion of the individuals whom Senator John Kerry (D-MA) might have
nominated had he defeated George W. Bush in the 2004 presidential election, see Neil A.
Lewis, Mixed Results for Bush in Battles Over Judges, N.Y. TIMES, Oct. 22, 2004, at A1;
see also Neil A. Lewis, Guessing Begins On Judgeships in a Kerry Term, N.Y. TIMES, Oct.
22, 2004, at A16.
645.
Lewis, Mixed Results for Bush in Battles Over Judges, supra note 644.
646.
Linda Greenhouse, Roberts Is at Court’s Helm, But He Isn’t Yet in Control, N.Y.
TIMES, July 2, 2006, § 1, at 1. Chief Justice Roberts agreed with Justice Antonin Scalia in
77.5% of the nonuanimous cases in the 2005-06 term and with Justice John Paul Stevens,
“arguably the [C]ourt’s most liberal member,” 35% of the time. Id. Justice Alito voted with
Justice Thomas in 84% of the Court’s nonunanimous decisions and with Justice Scalia in
78% of such cases; only 13% of the time did Justice Alito and Justice Stevens agree.

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In the most notable environmental case during the 2005-06 term,
Rapanos v. United States, the Supreme Court considered the extent to
which the Army Corps of Engineers can regulate wetlands under the Clean
Water Act.647 In a fractured decision that failed to resolve the matter, Chief
Justice Roberts and Justice Alito joined Justices Scalia and Thomas urging
a narrow definition of the term—one which would permit the federal
government to regulate only land that is adjacent to a “relatively permanent
bod[y] of water” and that has a “continuous surface connection with that
water, making it difficult to determine where the ‘water’ ends and the
‘wetland’ begins.”648 In contrast, Justices Stevens, Souter, Ginsburg and
Breyer would have preserved the broad and long-standing judgment of the
Army Corps of Engineers that its reach extends to wetlands adjacent to “all
identifiable tributaries that ultimately drain into large bodies of water,”
which would include “water beds that are periodically dry” and manmade
berms or ditches separating wetlands from adjacent tributaries.649 It is
possible, although by no means certain, that Gore-appointed judges would
have sided with Justice Stevens over Justice Scalia (or with Justice
Kennedy, whose middle-ground concurring opinion stated that remote
tributaries must have a “significant nexus” to a navigable waterway in
order to fall under governmental regulation, but rejected Justice Scalia’s
position that only permanent bodies of water are subject to Army Corps
jurisdiction650).
Although Supreme Court nominees generate more attention and
publicity than appointments to lower courts, the extent to which a president
can reshape the federal judiciary and achieve certain (environmental)
policy goals lies in his choice of judges to seats at the federal district courtand circuit courts of appeals-levels.651 To illustrate, because, as noted
above, many federal environmental statutes find their constitutional
linchpin in the Commerce Clause,652 a number of MEOs have opposed
Editorial, The Fragile Kennedy Court, N.Y. TIMES, July 7, 2006, at A16.
647.
126 S. Ct. 2208 (2006). For a sketch of the 4-4 split in Rapanos and its companion
case, Carabell v. United States Army Corps of Engineers, see Linda Greenhouse, Justices
Divided On Protections Over Wetlands, N.Y. TIMES, June 20, 2006, at A1.
648.
126 S. Ct. at 2222, 2227. For criticism of the Scalia opinion as judicial activism,
see, e.g., Editorial, Clean Water at Risk, N.Y. TIMES, June 20, 2006, at A16.
649.
126 S. Ct. at 2259-60, 2262, (Stevens, J., dissenting).
650.
Id. at 2236, 2242-43 (Kennedy, J., concurring in the judgment).
651.
Appointments to federal district courts are, perhaps, of greater importance to
environmental organizations than to other social justice groups because “[l]ower courts
follow one another, especially in highly technical areas [such as environmental law], and
hence judicial mistakes may be self-perpetuating.” SUNSTEIN, supra note 628, at 10 (citing
Andrew F. Daugherty and Jennifer F. Reinganum, Stampede to Judgment, 1 AM. L. ECON.
REV. 158 (1999)).
652.
U.S. CONST. art. I, § 8, cl. 3 (“Congress shall have the Power . . . [t]o regulate

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appointments by President George W. Bush—individuals who might limit
the authority of Congress under the Commerce Clause to enact
environmental safeguards, as well as those who might place procedural
hurdles before individuals wishing to sue polluters under “citizen suit”
provisions of various environmental laws. For example, a broad coalition
of non-governmental organizations has opposed the nomination of Peter D.
Keisler to the U.S. Court of Appeals for the D.C. Circuit.653 Earthjustice, in
conjunction with Community Rights Counsel, has resisted the nomination
of Department of Defense General Counsel William James Haynes II to a
seat on the U.S. Court of Appeals for the Fourth Circuit because of his
efforts to exempt the military from compliance with the CAA, RCRA,
CERCLA, ESA and the Marine Mammal Protection Act (MMPA).654
President Bush’s nomination of William G. Myers III, former Solicitor of
the Interior, to the Ninth Circuit Court of Appeals has encountered strong
resistance from environmental, tribal, labor, civil rights, disability,
women’s and other organizations, including some groups that have never
before opposed a judicial nominee.655 Of particular concern to
environmental groups is Myers’ strong support for property rights, his
criticism of governmental management of public lands, his expressed
desire to deter citizen enforcement of environmental laws, and his view of
the Endangered Species Act and Clean Water Act’s wetlands protections as
examples of “regulatory excesses.”656 Earthjustice also balked at the
Commerce with foreign Nations, and among the several States, and with the Indian tribes.”);
see ENVTL. LAW INST., supra note 618, at 6 (explaining how Congress enacts socioeconomic
legislation via the Constitution’s Commerce Clause).
653.
See Letter from Coalition for a Fair and Independent Judiciary to The Honorable
Arlen Specter, Chairman, Senate Committee on the Judiciary, United States Senate (July 31,
2006), available at http://www.judgingtheenvironment.org/assets/pdf/Keisler-GroupLetter07-31-06.pdf.
654.
Letter from Doug Kendall, Executive Director, Community Rights Counsel, and
Glenn Sugameli, Senior Judicial Counsel, Earthjustice, to The Honorable Arlen Specter,
Chairman, Senate Committee on the Judiciary, United States Senate, and The Honorable
Patrick J. Leahy, Ranking Member, Senate Committee on the Judiciary, United States
Senate (July 10, 2006), available at http://www.judgingtheenvironment.org/assets/
pdf/Haynes-Environmental-Concern-Letter.pdf.
655.
See, e.g., PEOPLE FOR THE AMERICAN WAY, PEOPLE FOR THE AMERICAN WAY IN
OPPOSITION TO THE CONFIRMATION OF WILLIAM G. MYERS III TO THE UNITED STATES COURT
APPEALS FOR THE NINTH CIRCUIT (2004), http://preview.pfaw.org/pfaw/
OF
dfiles/file_269.pdf.
656.
William G. Myers III, Environmental Command and Control: the Snake in the
Public Lands Grass, in FARMERS, RANCHERS AND ENVIRONMENTAL LAW 191, 208 (Roger
Clegg ed., 1995); PEOPLE FOR THE AMERICAN WAY, supra note 655, at 14; EARTHJUSTICE,
WILLIAM MYERS’ VIEWS ON ACCESS TO THE COURTS VIOLATE NINTH CIRCUIT PRECEDENT
AND WOULD EFFECTIVELY BAR MANY VITAL ENVIRONMENTAL AND PUBLIC INTEREST
CLAIMS, http://www.judgingtheenvironment.org/assets/pdf/Myers_Access_Courts.pdf (last

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nomination of Brett Kavanaugh, former Associate Counsel and Senior
Associate Counsel in the Office of White House Counsel, to the United
States Court of Appeals for the District of the Columbia Circuit.657 After a
more than two-year fight and much to their chagrin, Kavanaugh was
confirmed by a 57-36 Senate vote on May 26, 2006.
While a Gore presidency could have resulted in appointments of
individuals more inclined to find broad governmental regulatory power
under the Commerce Clause, (and thus, more likely to vote in favor of
decisions with burden-increasing consequences for emitting and
discharging entities), all presidents, regardless of their political ideology,
judicial philosophy and degree of environmental consciousness, must still
rely on the Senate to confirm their nominees.658 Thus, one might argue that
treating criminal disenfranchisement as an environmental issue for the
simple hope of altering the outcome of presidential elections is a
misallocation of resources, especially if an unresponsive Congress
encumbers judicial appointments. But, as noted in Part II.B.3.a, criminal
disenfranchisement may affect Congressional races in addition to
presidential ones, thereby bolstering, not undercutting, the argument that
environmental organizations should devote attention to criminal
disenfranchisement laws and policies. Perhaps more significantly,
“[Congress’s] historical role in the formation of environmental policy has
been both highly influential and unquestionably responsive to the American
public’s concern over environmental degradation.”659 While this has been
true for both parties, Democrats tend to be more supportive of pollution
control measures,660 whereas Republican are more inclined to favor “rapid
and unencumbered economic growth.”661 As political science professor
visited Apr. 29, 2007).
657.
Letter from Glenn P. Sugameli, Senior Legislative Counsel, Earthjustice, to The
Honorable Orrin Hatch Chairman, Senate Committee on the Judiciary, United States Senate,
and The Honorable Patrick Leahy, Ranking Member, Senate Committee on the Judiciary,
United States Senate (Apr. 26, 2004), available at http://www.judgingtheenvironment.
org/assets/pdf/Kavanaugh_Earthjustice_Letter.pdf. Earthjustice was not alone in its
opposition to Kavanaugh’s appointment. See, e.g., Editorial, An Unqualified Judicial
Nominee, supra note 628.
658.
U.S. CONST. art. II, § 2, cl. 2 (“[The President] shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other Officers of the United States . . . .”).
659.
Kraft, supra note 11, at 170 (citations omitted); see also Sheldon Kamieniecki,
Political Parties and Environmental Policy, in ENVIRONMENTAL POLITICS & POLICY, supra
note 1, at 146, 150 (“Congress and state legislatures have a major impact on environmental
policy-making.”).
660.
Kamieniecki, supra note 659, at 148 (“Republicans are generally less in favor of
pollution control measures than Democrats.”).
661.
Id.

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Sheldon Kamieniecki notes “since 1860 the Democratic Party, on the
whole, has placed greater emphasis on natural resource questions in its
platforms than the Republican Party. Republicans, in contrast, have
expressed more concern with states’ rights and private development of
natural resources and have been especially critical of Democratic policies
involving federal control of resources.”662 Examining data for Republicans
and Democrats in the U.S. House of Representatives and U.S. Senate
between 1973 and 1992, Kamieniecki observes that Democrats are”more
likely than Republicans to vote in favor of environmental legislation in
both houses over the nineteen years. The differences are especially large
during the Reagan and Bush administrations, where in some years support
for environmental legislation [was] twice as high among Democrats than
among Republicans.”663
What makes Kamieniecki’s conclusions regarding political parties and
environmental policy significant for the present discussion is that the party
that tends to favor stronger federal environmental protections also tends to
express greater support for fewer restrictions on offender and ex-offender
voting. A survey conducted by Brian Pinaire, Milton Heumann, and Laura
Bilotta found that Republicans demonstrated greater support for lifetime
disenfranchisement, while Democrats seemed more receptive to
liberalizing state disenfranchisement laws.664 Returning to the concern
expressed at the beginning of this Section that MEOs may fear alienating
their donors (both corporate and individuals) who have less awareness,
662.
Id. at 149-50. Kamieniecki also points out that “Republicans more than Democrats
depend upon the continued financial backing of large corporations and polluting firms in
their election campaigns,” and thus are less likely to support environmental measures than
Democrats. Id. at 164; see also Ingram, Colnic & Mann, supra note 433, at 135 (“As long as
money remains so important in elections and environmental groups stay poor relative to
industry and trade lobbies, electoral campaigns will continue to be of limited use to
environmental groups.”). While money continues to play an important role in elections, the
last two presidential elections were decided by exceptionally close margins–gaps so small
that a handful of votes, rather than larger campaign coffers, distinguished the victor from the
loser.
663.
Kamieniecki, supra note 659, at 156. See also Kraft, supra note 11, at 173
(“Proenvironmental voting . . . is more likely among liberals, Democrats, and members from
urban and suburban districts and districts in the East than among conservatives,
Republicans, and members from rural districts and the South.”).
664.
Pinaire, Heumann & Bilotta, supra note 15, at 1540 n.75, 1547. Democratic
support for reenfranchising disenfranchised offenders and ex-offenders may be due, in part,
to the fact that African Americans, who are disproportionately represented in jails and
prisons, and among the population of criminally disenfranchised individuals, often tend to
vote for Democratic candidates. See, e.g., Adam Nagourney, Republicans Coming Up Short
in Effort to Reach Out to African-American Voters, N.Y. TIMES, July 18, 2006, at A16 (“‘It
took the Republican Party 40 years, since 1964, to get 8 percent of the vote.’” (quoting Ken
Mehlman, chairman of the Republican National Committee)).

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understanding or sympathy for the plight of disenfranchised offenders and
ex-offenders, this Author suggests that such fears are unfounded because
robust environmental policy falls on the same side of the partisan divide as
liberal disenfranchisement policy. In other words, the donors and members
of environmental organizations, as well as the elected officials sympathetic
to environmental causes, are less likely to withdraw their support if
environmental organizations adopted criminal disenfranchisement as an
issue than if such organizations embraced a pro-life position.
In fact, Pinaire and his colleagues found that only a quarter of
Republicans surveyed supported permanent disenfranchisement and only
38.1% supported disenfranchisement during incarceration, parole or
probation,665 leading to the conclusion that removing hurdles to voting for
offenders and ex-offenders enjoys greater bipartisan backing than natural
resource protection and stringent pollution controls.666 Why
reenfranchisement enjoys support across party lines is subject to debate, but
Abramsky posits that “disenfranchisement affects people of all political
persuasions and raises questions of fundamental fairness that transcend
party-political allegiances.”667 Ewald comments that given the complexity
of disqualification and restoration procedures, “it should come as no
surprise that many voters are ignorant of their voting status, a fact that is
likely to have resulted in hundreds of persons with a felony conviction
registering and voting illegally in recent years.”668 For Abramsky, then,
disenfranchisement transcends the partisan divide because voting affects all
parties (even though Democrats tend to be more concerned with issues of
fairness and access than Republicans). For Ewald, Republicans, who
usually adopt harsher tough-on-crime platforms, may express concern for
disenfranchisement because of the risk that confusing laws may lead to
improper voting. Either way, environmental organizations should not avoid
the injustices of criminal disenfranchisement for fear of jeopardizing
funding sources or alienating constituencies.
Finally, despite the success of federal environmental policy669 and the
need for additional legislation with teeth, especially with respect to climate
change, much environmental policy now occurs at the state and local

665.
666.

Pinaire, Heumann & Bilotta, supra note 15, at 1540 n.75.
Pinaire and his colleagues noted, however, that “[a]s the effects of
disenfranchisement policies receive greater publicity and as the laws are reevaluated . . . we
expect the debate over these issues to become increasingly partisan, especially as Democrats
are expected to be the beneficiaries of such an extension of the franchise.” Id. at 1545-46.
667.
ABRAMSKY, supra note 37, at 121.
668.
EWALD, CRAZY-QUILT, supra note 15, at iii.
669.
For an overview of the literature concerning congressional performance on
environmental policy issues, see Kraft, supra note 11, at 196-97.

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levels.670 But, as with Congressional races discussed above and as noted in
Part II.B.3.a, criminal disenfranchisement may affect local elections,
further reinforcing this Article’s recommendation that environmental
organizations should devote attention to criminal disenfranchisement laws
and policies. Nevertheless, one might still argue that given that MEOs tend
to draw members from across the country and tend to focus on national and
international issues671 (albeit ones that may manifest themselves differently
on regional or local levels), criminal disenfranchisement might have
limited appeal to such organizations because of the limited potential for
reenfranchised offenders and ex-offenders to impact elections relevant to
significant numbers in their membership rolls (i.e., Presidential and Senate
races). But as Scott Kuhn, Staff Attorney for Communities for a Better
Environment in San Francisco, CA contends:
Unless the people and communities who have to live with
environmental pollution policies are actively and meaningfully involved
in the decisionmaking process, it is irrelevant whether environmental
regulatory control is located at the federal, state, or local level. For too
long, the public’s voice in environmental regulation, which is an
essential part of democracy, has been tokenized, stifled, drowned out by
industry, or otherwise ignored. With increasing privatization,
marketization, and decentralization of environmental decisionmaking,
increased public participation is essential to achieving environmental
justice. True public participation and environmental justice cannot be
realized until the communities that are impacted by environmental
regulations have a voice in the process equal to that of regulated
industry.672

Along these lines, grassroots environmental organizations are often more
interested in access to local officials and change at this level than to federal
officials and change at the national level.673 While MEOs could interpret
the growth of environmental policy on the state and local level and the
concerns of grassroots organizations about access to state and local elected
officials as a reason not to support the repeal or liberalization of criminal
disenfranchisement policies, they could just as easily support the repeal or
liberalization of criminal disenfranchisement policies in hopes of achieving
a stronger and deeper army of environmental advocates and activists. In
other words, because environmental problems and solutions range from the
670.
671.
672.
673.

Costain & Lester, supra note 4, at 15.
See sources cited supra note 4 and accompanying text.
Kuhn, supra note 486, at 647-48.
Ingram, Colnic & Mann, supra note 433, at 131 (“Local groups seek community
solutions to community problems. While they often work with federal administrators such
as EPA officials on Superfund sites, their primary interest is change at the local level.”).

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international to the local and because disenfranchisement can affect
elections from the presidential to the local, broadening the electorate brings
with it the real possibility of widespread change. As Shabecoff contends:
For much of this century, the [environmental] movement has been
functioning as an ecological emergency squad, responding to crises and
seeking to plug a leaking statute here or fill a regulatory gap there. In
the future, instead of simply lecturing, or lobbying, or demonstrating, or
haggling, or litigating to protect public health and natural resources, the
environmentalism activists almost certainly must move forward to
acquire the power necessary to achieve fundamental change. To do so
they will have to tap the latent support that is repeatedly demonstrated
by the opinion polls to build an effective political base—a base strong
enough to counter the financial power wielded by those interests that
oppose environmental reform. Political leaders must be presented with a
clear choice between addressing our environmental ills and being
replaced.674

Reenfranchising the criminally disenfranchised could potentially result in
both a more responsive and effective ecological emergency squad and in
the political base powerful enough to confront opponents of environmental
reform.
D. Diversity, Local Knowledge, and Environmental Values
In Part I and Part III.A, this Article noted the growth and development of
environmental concern in this country and the corresponding phases or
movements, marked by an expanding agenda of issues and a broader set of
tools to achieve desired goals.675 As political scientists W. Douglas Costain
and James P. Lester state, “[w]e have observed a number of policy changes
(e.g., from the ‘wise use’ of natural resources to pollution prevention and
waste minimization); patterns of participation have evolved from largely an
elitist style in the late 1890s to ‘participatory democracy’ in the 1990s.”676
Similarly, sociologist Bill Devall, an early proponent of deep ecology—a
philosophy developed in the 1970s that rejects an anthropocentric
worldview in which humans dominate nature, regard its resources as
unlimited, and privilege economic growth at the expense of everything
else, in favor of an ecocentric or biocentric perspective in which humans
are part of the “web of life” and “equal with the many other aspects of

674.
675.
676.

SHABECOFF, supra note 2, at 279.
See supra Part I, III.A.
Costain & Lester, supra note 4, at 15; see also id. at 36 (“[T]he patterns
described . . . over the past one hundred years suggest an expansion of the environmental
movement from elitism to participatory democracy.”).

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creation,”677 writes:
The U.S. conservation and environmental movement is one of the most
enduring and vital social movements of the past century. Since the
founding of the Sierra Club by John Muir and his associates in 1892, the
movement has persisted in various versions, despite continual
differences between its conservation and preservation wings.678

These “continual differences” within the environmental movement as a
whole have at times been troublesome. Indeed, charges of racism levied
against the MEOs, discussed earlier in this Article, show that efforts to
protect the environment have often been quite divisive. Recognizing that
“people concerned with environmental affairs value different things,”679
Dryzek and Lester propose a typology of environmental worldviews as a
heuristic device to flesh out different conceptions of the humanenvironment relationship (and the major actors who hold these ideas), as an
instrument to chart shifts in perspectives over time, as a tool to evaluate
and criticize environmental thought, and as a means for crafting scenarios
of the “environmental future.”680 While an in-depth analysis of their
typology is outside the scope of this Article, it is worthwhile highlighting
the structure of their six-cell typology and some of the beliefs contained
therein.
Across the x-axis of their grid, which they entitle “Locus of Value,”
Dryzek and Lester distinguish between thinkers who focus on the
individual (such as free-market conservatives) and those who focus on the
community—a group that can be further divided into an anthropocentric
strain (such as socialist and marxist environmentalists, social ecologists,
and eco-anarchists, who all regard capitalism as antiecological and the root
of natural resource destruction) and a biocentric strain (such as the deep
ecologists mentioned above).681 Across the y-axis of their grid, which they
entitle “Locus of Solutions,” Dryzek and Lester distinguish between
thinkers who favor centralized solutions (i.e., ones that involve a major role
for governmental institutions) and thinkers who prefer decentralized
solutions to environmental problems (i.e., ones that involve limited
governmental action—communal cooperation or competition).682
677.
Devall, supra note 4, at 52; BILL DEVALL & GEORGE SESSIONS, DEEP ECOLOGY
(1985); Dryzek & Lester, supra note 1, at 337-38.
678.
Devall, supra note 4, at 51.
679.
Dryzek & Lester, supra note 1, at 330.
680.
Dryzek & Lester, supra note 1, at 338-39, 343. Dryzek and Lester assert, rather
pompously and, this Author would argue, incorrectly, “[i]f a thinker is not readily located in
one cell, we should look out for potentially fatal inconsistencies.” Id. at 339.
681.
Id. at 331.
682.
Id.

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Several of these “cells” bear mention. Structural reformers, located
within the “individual-centralized” cell, have faith in the existing political
system, believe that “continued tinkering with decision-making processes
will suffice,”683 and generally advocate for administrative centralization
with more laws to regulate polluters and more funds for enforcement.684
Reform ecologists, whom Dryzek and Lester claim populate the
mainstream of American environmentalism, are situated in the
“community-biocentric-centralized” cell (although different organizations
balance anthropentric and biocentric concerns in different ways). Reform
ecologists tend to “give ecological values a voice in the higher (central)
levels of the existing political system”—values that may include wetland
preservation and pollution control.685 Dryzek and Lester draw similarities
between ecofeminists, who regard patriarchy as the root of all evil in
society and what makes domination of nature possible, and social
ecologists, placing them in the “community-anthropocentric-decentralized”
cell.686 And cornucopians—a type of free-market conservative and thus
located in the “individual-decentralized” cell—subscribe to a worldview in
which “no resource can ever run out if a competitive market order exists to
stimulate the development of substitutes.”687 According to cornucopian
free marketers, population growth is not a problem because “more people
means more problem solvers.”688
Regardless of where one situates oneself within Dryzek and Lester’s
typology, this Article argues that an expanded electorate achieved by
liberalizing criminal disenfranchisement laws and policies may result in
more individuals sharing and promoting one’s worldview. For example, an
expanded electorate should be appealing to structural reformers because
more voters can push for more stringent environmental laws to regulate
polluters. Reform ecologists may look at a broader electorate as an
opportunity to “give ecological values a voice in the higher (central) levels
of the existing political system.” To understand how criminal
disenfranchisement might be an issue of concern for social ecologists,
consider political scientists Gerald B. Thomas’s assertion:
[I]f the activities and institutions of society are not allowed to
precipitate from a diverse and nonhomogenuous set of environments,

683.
684.
685.
686.

Id. at 332.
Id. at 331-32 (citations omitted).
Id. at 333-34.
Id. at 337 (describing ecofeminists as considering it “foolish to talk of better
environmental policy, or more harmonious, less exploitative relationships with the natural
world, unless one first attacks patriarchy”).
687.
Id. at 335.
688.
Id.

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then society will not evolve in any real sense but will instead become
both socially and ecologically unsustainable.
....
The greatest service that we can do for society, therefore, is to transform
ourselves into people who will be capable of helping others in the
coming years; the greatest service we can do for ourselves is to become
empowered and self-realized. The general population must come to
realize that society needs to be recreated so that each and every
individual is allowed to fully develop his or her uniqueness,
competence, and creativity. This, according to the social ecologists and
the vision I propose, is a necessary prerequisite for solving the
environmental crisis.689

An empowered, self-realized and diverse population, the social ecologist
might argue, can stem the tide of homogenization and centralization that
they fear is contributing to environmental crises and work in decentralized
context to social, economic and ecological sustainability. Addressing
criminal disenfranchisement, which disproportionately bars African
Americans and African American women from the polls, should also be of
interest to the ecofeminist strain of social ecology, which might well regard
this form of domination as an evil on par with patriarchy—an evil that must
be eradicated before harmonious relationships can be established with the
natural world. Liberalizing criminal disenfranchisement laws and policies
is even consistent with the cornucopian worldview: more voters means
more problem solvers (and hence a reason not to worry about allegedly
“finite” resources). Finally, and as this Article argues, most significantly,
an expanded electorate may bring about the formation of an entirely new
set of environmental values—which could either add to or subdivide
Dryzek and Lester’s six-cell typology.
One might question why we would benefit from a more elaborate
environmental typology. As these examples illustrate, the breadth of
environmental worldviews often results in disagreement over the source
and extent of and solutions to environmental problems, as well as how to
prioritize these problems. With diverging environmental perspectives
leading to the divisiveness that Devall described and the diversity of
environmental groups and organizations that gave Ingram, Colnic and
Mann cause for concern in Part III.A, should not our efforts be geared
towards bridging differences and contracting Dryzek and Lester’s
typology?
Although there is a certain safety and security in the known, this Article

689.

Thomas, The Politics of Hope, supra note 475, at 353, 360.

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argues in favor of liberalizing criminal disenfranchisement policies in order
to generate the very diversity that elicited such mixed reactions for Ingram,
Colnic and Mann, but which Dunlap and Mertig regard with much greater
favor:
Although environmentalism has clearly endured over the past two
decades, with unintentional aid from its opposition, it nonetheless has
changed substantially. The major change appears to be its vastly
increased diversity. As Gottlieb noted, “By the end of the 1980s . . .
environmentalism meant many different things to different groups and
movements.” Although this diversity may lead to fragmentation, which
Mauss sees as a precursor to the demise of a movement, we believe that
it may prove to be an important strength of contemporary
environmentalism.
....
[D]espite all of their differences, the various types of environmentalists
share a recognition of the deteriorating state of the environment, a
desire to halt such deterioration, and an opposition to those who foster
it. What differentiates them are their diagnoses of the causes of the
problems and their prescriptions for solving them. These are vast,
indeed, and at times the resulting differences in strategies, tactics, and
goals will no doubt be counterproductive. In the long run, however, we
see this diversity as potentially enhancing the movement, providing it
with more resources and personnel, and virtually guaranteeing that there
will be a thirtieth Earth Day!690

For Dunlap and Mertig, then, because the environment itself is diverse, it
follows that different peoples will interact with different environments (and
even the same environments) in different ways. This idea resonates with
Maureen Austin, who describes how the Forest Trust, in Santa Fe, New
Mexico, relies on the knowledge of rural communities in developing
management plans for local forest resources, and who contends that
forestry professionals have much to gain from understanding urban forestry
through the eyes of local residents because “local people know their local
environment and community and care about this area in ways that outsiders
never could”691—an idea vital to Agenda 21, discussed earlier in Part
III.A.692 Similarly, environmental policy analyst Francis Irwin and
690.
Dunlap & Mertig, supra note 450, at 5, 8 (quoting R. Gottlieb, An odd assortment
of allies: American environmentalism in the 1990s, 4 GANNETT CENTER JOURNAL, 37-47
(1990))(citations omitted).
691.
Austin, supra note 572, at 180; see also Cole, supra note 4, at 640 (“Grassroots
activists bring different life experiences and cultural histories to the table . . . .”).
692.
See supra Part III.A. Austin’s assertion regarding how local people know and care

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environmental attorney Carl Bruch write: “Involving citizens,
nongovernmental organizations (NGOs), and businesses expands the
knowledge base and resources for developing laws and policies, as well as
improving compliance and enforcement.”693 By the same token, while local
understanding and an expanded knowledge base better helps to ensure the
protection of local environments, linguists Rom Harre, Jens Brockmeier,
and Peter Muhlhausler argue that enhanced ecological knowledge can
contribute to the protection of larger environments: “the global nature of
many environmental issues makes a global exchange of perspectives—
rather than a one-way selection of useful perspectives . . .—one of the
fundamental tasks . . . .”694
Essentially, there are instances in which unity is necessary but diversity
leads to fragmentation (as already expressed in Part III.A), stagnation, infighting and regression. But there are also instances in which diversity can
increase the participation of citizens, increase the publicity and exposure of
an environmental problem to a wider audience (including policymakers),
and can broaden the tools and create new ones for remedying the problem
(which may include environmental law and policy, but also individual and
collective behavior irrespective of legal sticks and carrots). If “[a] hallmark
of democracy is that the state is constantly re-inventing itself through the
input of voters,”695 then this Article would suggest that a broadened
electorate may well make for a more elaborate environmental typology and
a subsequently better, reinvented state—one that is socially, economically
and ecologically sustainable.
IV. RECOMMENDATIONS FOR EXPANDING THE ELECTORATE (AND
POTENTIALLY INCREASING AND IMPROVING ENVIRONMENTAL
PROTECTION)
“No political movement in the United States can assume the status of
being both national and progressive unless and until it examines the
impact of cultural diversity, i.e., ‘race’ in American society.”696
“‘If we want former felons to become good citizens, we must give them
about their local environment in special ways relates not only to Chapters 23 and 27 of
Agenda 21, quoted earlier, but also Chapter 26.1, on indigenous peoples and their
knowledge of and relationship with their lands. Agenda 21, supra note 507.
693.
Irwin & Bruch, supra note 490, at 511 (footnote omitted).
694.
HARRE, BROCKMEIER & MUHLHAUSLER, supra note 17 at 159.
695.
Demleitner, supra note 183, at 772 (citing George P. Fletcher, Disenfranchisement
as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. REV. 1895, 1906
(1999) (“Voting is [] about expressing biases, loyalties, commitments, and personal
values.”)).
696.
Willard, supra note 458, at 77.

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rights as well as responsibilities, and there is no greater responsibility
than voting.’”697

Few organizations like to advocate for positions, policy proposals, or
legislation that have little chance of acceptance or passage. Environmental
organizations are no different. When David Yarnold, Executive Vice
President of Environmental Defense was asked why his group had not
promulgated a creative and bold global warming plan with teeth, he
replied: “‘Why would you want to lobby for something that can’t get
done?’”698 But attempting to scale back or repeal state criminal
disenfranchisement laws and to encourage greater participation in voting is
neither an unpopular effort (that could alienate members, donors and
political allies), nor is it a doomed undertaking with little chance of
success.699 Studies show broad public support for some degree of change in
the area of criminal disenfranchisement. Policy reform, which usually lags
behind public opinion, has also started taking place, with a number of states
within the last ten years liberalizing their criminal disenfranchisement laws.
This Part begins by briefly reviewing two recent studies of public
opinion regarding criminal disenfranchisement. It then provides an
overview of some of the changes that states have undertaken to their
disenfranchisement laws over the past decade. With this background, this
Part then offers a menu of reforms to state criminal disenfranchisement
policies which environmental organizations could support depending on
their desired level of involvement and progressiveness.700 In addition, this
Part also makes suggestions for educating offenders, ex-offenders,
correctional and criminal justice officials, including probation and parole
staff, as well as state election officials about the loss of voting rights and
the procedures for franchise restoration. This Part concludes by noting
several recommendations for how to correct the inequities created by the
Census Bureau’s application of the “usual residence rule” to prisoners.
697.
Mauer, Disenfranchising Felons Hurts Entire Communities, supra note 382, at 6
(quoting Congressman John Conyers (D-MI)).
698.
Katherine Ellison, Turned Off by Global Warming, N.Y. TIMES, May 20, 2006, at
A13 (quoting David Yarnold, Executive Vice President, Environmental Defense).
699.
Although nonprofit organizations risk losing their tax exempt status if they
campaign for candidates, they may take stands on issues and pass out voter guides. Efforts
to scale back or eliminate state criminal disenfranchisement laws are unlikely to threaten
environmental organizations’ tax exempt status. See generally Stephanie Strom, AntiAbortion Group Loses Tax Exemption, N.Y. TIMES, Sept. 15, 2006, at A16.
700.
For recently-considered Congressional bills that would prohibit felon
disenfranchisement, see sources cited supra note 196. For a discussion of whether Congress
should enact legislation to restore voting rights in federal elections to citizens convicted of a
felony, thereby ensuring that federal elections are not subject to disparate state laws, see,
e.g., FELLNER & MAUER, supra note 110, at part IX.

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A. Public Opinion of and Recent Changes to State Criminal
Disenfranchisement Laws and Policies
“Social movements are spearheaded by activists and organizations, but
their success or failure is often heavily influenced by the degree of
support they receive from the broader public.”701

In Part III.C, this Article noted the research of Pinaire, Heumann and
Bilotta, which found that while Republicans demonstrate greater support
for lifetime disenfranchisement and Democrats appear more receptive to
liberalizing state disenfranchisement laws,702 only a quarter of Republicans
surveyed supported permanent disenfranchisement and only thirty-eight
percent supported disenfranchisement during incarceration, parole or
probation,703 leading to this Author’s conclusion that removing hurdles to
voting for offenders and ex-offenders enjoys bipartisan backing. Almost
eighty-two percent of the participants in the same Spring 2001 survey felt
that, at some point, the right to vote should be restored to convicted felons;
only about sixteen percent supported permanent disenfranchisement.704
While survey respondents overwhelmingly agreed that convicted felons
should eventually regain their right to vote, they lacked consensus as to
when the right to vote should be returned:705 About ten percent felt that
felons should never lose the right to vote; approximately thirty-two percent
responded that felons should lose the right to vote only while incarcerated;
five percent answered that felons should lose the right to vote only while on
parole or probation; and roughly thirty-five percent believed that felons
should lose the right to vote only while incarcerated, or on parole or
probation.706 Based on these results, Pinaire and his colleagues concluded
that “the majority of Americans are somewhere in the middle. Relatively
few favor a policy that never punishes felons with a temporary deprivation
of their right to vote, and only slightly more favor a policy that
permanently punishes felons with a deprivation of their right to vote.”707
While the Pinaire-Heumann-Bilotta survey suggested that the public favors
policies in tune with the thirty-some states (and the District of Columbia)
that restrict the right to vote during incarceration and/or parole or

701.
Riley E. Dunlap, Trends in Public Opinion Toward Environmental Issues: 19651990, supra note 14, at 89.
702.
See sources cited supra note 664 and accompanying text.
703.
See supra note 665 and accompanying text.
704.
Pinaire, Heumann & Bilotta, supra note 15, at 1540, 1545. Note that none of the
African-Americans surveyed supported lifetime disenfranchisement. Id. at 1540 n.75, 1546.
705.
Id. at 1540, 1545.
706.
Id. at 1540.
707.
Id. at 1545.

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probation, the authors of the study surmised that “[a]s public awareness of
these laws increases—especially owing to the impact of the Florida law on
the election of 2000 and the increase in scholarly attention—[there will
likely be] even more rigorous scrutiny of state legislation that permanently
revokes the voting rights of convicted felons.”708
A second survey conducted in late Spring 2002 by Uggen and Manza,
along with political sociologist Clem Brooks, also found little support for
the assumption that the American public consistently supports the
disenfranchisement of felons and ex-felons who are not currently
incarcerated.709 While only thirty-one percent of respondents supported
enfranchisement of prisoners, between sixty and sixty-eight percent
supported enfranchisement of probationers—sixty percent when the
question’s wording implied that probationers have not been imprisoned;
sixty-eight percent when the question’s wording explicitly specified that
probationers have not been imprisoned.710 These numbers are noteworthy
because felony probationers make up twenty-five percent of the
disenfranchised felon population.711 Survey participants also expressed
strong support for enfranchisement of parolees, with sixty percent
expressing their belief that parolees should not be denied the right to
vote.712 Manza, Brooks and Uggen also queried participants about their
opinions regarding enfranchisement for different categories of ex-felons.
When asked about voting rights for ex-felons, with no reference to the type
of crime committed, eighty percent endorsed enfranchisement.713 Support
decreased, however, when the type of crime was specified—sixty-six
percent endorsed enfranchisement of ex-felons convicted of a violent
offense, sixty-three percent endorsed the enfranchisement of white-collar
ex-felons, and fifty-two percent endorsed the enfranchisement of sex
offenders.714 The authors speculated that sex offenders elicited the least
support for the extension of voting rights because of the “special stigma or
perceived threat associated with sex offenders.”715 They noted, however,
that sex offenders constitute a modest proportion of current prisoners and
ex-felons.716 Based on these numbers, they then concluded that “a civil
liberties view prevails over a punitive view that would deny political rights

708.
709.
710.
711.
712.
713.
714.
715.
716.

Id.
Manza, Brooks & Uggen, supra note 182, at 283.
Id. at 280.
Id. at 283.
Id. at 280.
Id. at 281.
Id.
Id.
Id.

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to nonincarcerated felons.”717
Public discomfort with criminal disenfranchisement is both reflected by
and reflective of recent changes to criminal disenfranchisement laws. From
the late 1960s to the late 1990s, more than fifteen states eliminated
provisions banning felons from voting for life.718 In the past decade and in
bipartisan fashion, about ten states have scaled back or repealed
components of their disenfranchisement laws.719 While some states have
adopted more restrictive criminal disenfranchisement laws during this time
period720—for example, until 1998, Massachusetts and Utah permitted
individuals behind bars to vote721—the more recent trend, especially in the
aftermath of the 2000 presidential election, appears to be in the direction of
enfranchisement. As Abramsky illustrates:
Going into the 2000 election, thirteen states permanently
disenfranchised felons. Going into the 2004 election, only seven states
continued to have blanket disenfranchisement laws. In the intervening
four years, political pressure resulted in reform in Delaware, Maryland,
New Mexico, Nevada, Washington, and Wyoming. Even Florida and
Alabama, the two states most affected by felon disenfranchisement
going into the 2000 election, eventually passed provisions making it
somewhat easier for ex-felons to apply for a pardon from the governor
and, by extension, to have their names put back on the electoral rolls. In
the months following the 2004 election, Nebraska and Iowa also eased
restrictions on ex-cons’ ability to vote.722

717.
Id. at 283. For additional research by Uggen and Manza regarding public opinion
of criminal disenfranchisement laws and policies, see Manza & Uggen, Punishment and
Democracy, supra note 58, at 500 (discussing how public support for felon voting rights
does not extend to those in prison); Uggen, Manza & Behrans, Disenfranchisement of
African Americans, supra note 50, at 54 (discussing how most Americans favor reenfranchisement).
718.
Saxonhouse, supra note 15, at 1636.
719.
Behrens, supra note 183, at 254, 269-72; see also Editorial, Playing Games With
Voting Rights, N.Y. TIMES, Sept. 14, 2005, at A28 (“[T]he American Correctional
Association, which represents prison officials, recently called on states everywhere to stop
barring ex-offenders from the polls because that practice was inconsistent with the goal of
rehabilitation.”).
720.
Manza & Uggen, Punishment and Democracy, supra note 58, at 499 (“Since
1975, 13 states have liberalized their laws, 11 states have passed further limitations on
felons, and three states have passed both types of laws.”).
721.
See, e.g., sources cited supra notes 200-08 and accompanying text; ABRAMSKY,
supra note 37, at 67-78 (discussing Massachusetts’ and Utah’s decisions to remove the
franchise from prisoners).
722.
ABRAMSKY, supra note 37, at 12-13; see also One Person, No Vote, supra note
218, at 1946-49, 1958 (discussing modifications to disenfranchisement policies in Nevada,
Kentucky, Tennessee, Washington, New Mexico, Texas and Connecticut); Erik Eckholm,

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More recently, in June 2006, Tennessee created a single restoration process
for eligible persons who have completed their sentences (including parole
and probation), paid all outstanding fines, and are current on any child
support payments.723 Previously, individuals convicted of felonies in
Tennessee prior to 1973 lost their voting rights if the conviction was for
one of eight categories of crimes. For convictions between 1973-1981,
individuals lost their voting rights while serving their sentences, but could
regain them after completion of their sentences. Individuals convicted after
1981 for any felony offense permanently lost their right to vote. Under the
new statute, those with felony convictions who meet all of the requirements
may apply for and receive a certificate of voting rights restoration.724 Later
that same year, Rhode Island voted to restore the right to vote for persons
with felony convictions after they leave prison.725 Most recently, the
Maryland Legislature voted to return the franchise to all ex-offenders who
have completed their sentences and finished parole and probation (with the
exception of individuals convicted of election fraud)726 and in Florida, the
Office of Executive Clemency, at the urging of Governor Charlie Crist (R),
voted to amend the state’s voting rights restoration procedure to
automatically approve the reinstatement of rights for many persons who
have been convicted of non-violent offenses.727
B. Options and Recommendations for Liberalizing State Criminal
Disenfranchisement Laws and Policies
Interest groups intent on significantly affecting criminal
disenfranchisement might consider pushing for modifications in some of
the state criminal sentencing laws, such as those discussed in Part II.A. As
States Are Growing More Lenient In Allowing Felons to Vote, N.Y. TIMES, Oct. 12, 2006, at
A18 (noting Iowa, Nebraska and New Mexico’s recent repeals of lifetime bans on voting by
people who have been convicted of felonies).
723.
Press Release, American Civil Liberties Union, Tennessee Legislature Simplifies
Voting Restoration for Ex-Felons (May 17, 2006), http://www.aclu-tn.org/
release051706.htm.
724.
TENN. CODE §§ 40-29-101 to 205 (2006). Individuals convicted of murder, rape,
and certain other specified crimes, including voter fraud, are ineligible to have their voting
rights restored. TENN. CODE § 40-29-204.
725.
On November 7, 2006, 51.52% of Rhode Island voters approved an amendment to
the Rhode Island constitution to grant the voting franchise to those felons who are currently
serving parole or a probation sentence. See, e.g., Joshua Pantesco, Rhode Island Approves
Measure Giving Felons on Parole Right to Vote, JURIST, Nov. 8, 2006,
http://jurist.law.pitt.edu/paperchase/2006/11/rhode-island-approves-measure-giving.php.
726.
Editorial, A Step for Voting Rights, N.Y. TIMES, Mar. 30, 2007, at A26.
727.
Abby Goodnough, In a Break From the Past, Florida Will Let Felons Vote, N.Y.
TIMES, Apr. 6, 2007, at A14. Note, however, that convicted murderers, sexual predators, and
“violent career criminals” still need a hearing before the Clemency Board. Id.

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Uggen and Manza argue, “high rates of criminal punishment, rather than
new laws, account for the political impact of felon disenfranchisement.”728
While pushing for change in sentencing and punishment is both noble and
needed and would result in immeasurable economic, social and public
health benefits,729 in addition to expanding the electorate, it is far easier to
scale back or repeal criminal disenfranchisement laws than to affect major
changes in the United States criminal justice system.730 Given that
legislative campaigns have been more successful than litigation in bringing
about reform,731 environmental organizations—both MEOs and grassroots
environmental groups (many of whom are understaffed and underfunded)—might be better served joining forces with social justice
organizations devoted to prisoners’ and ex-offenders’ rights to bring about
change through legislation rather than litigation.732
The first step for a coalition of environmental and social justice
organizations to undertake would be to push for legislation that eradicates
disenfranchisement for misdemeanors. Given that there are only a handful

728.
729.

Uggen & Manza, Democratic Contraction, supra note 39, at 795.
See sources cited supra note 86-97. In some instances, change in sentencing and
punishment would just make plain old common sense. Consider, for example, the case of a
Pennsylvania woman who was sentenced in June 2006 to prison for one to three years for
telling her six-year-old daughter to steal a volunteer fire company’s fund-raising jar–a crime
that netted $1.85. See Associated Press, National Briefing: Mid-Atlantic: Pennsylvania:
Woman Sentenced in Theft of $1.85, N.Y. TIMES, June 14, 2006, at A18.
730.
Cf. ABRAMSKY, supra note 37, at 203 (“Because those who can’t vote are, almost
by definition, marginalized people, there’s no real political pressure to restore felons’ voting
rights. Rather, politicians feel they have far more to lose than to gain by touching the
issue.”).
731.
See, e.g., One Person, No Vote, supra note 218, at 1958-59 (“Given that litigation
has been relatively ineffective thus far, organizing communities around legislative
campaigns may be the best hope for meaningful reforms.”); but see Behrens, supra note
183, at 272-74 (describing legislation as not going far enough, observing, “[o]ne of the
biggest problems with legislation is that states are still picking and choosing who to
enfranchise, drawing categorical lines based on correctional status or type of conviction,”
and noting, “legislative change within a state is not safe from potential future change by a
different state group of legislators”).
732.
This is not to suggest that all efforts at litigation should be abandoned or that
litigation should be dropped entirely as a strategy. Carefully selected suits may prove highly
effective, see One Person, No Vote, supra note 218, at 1959 (“The low probability of
winning wholesale judicial invalidations of state disenfranchisement laws should not
preclude carefully targeted challenges”), and may work synergistically with legislative
campaigns to provide exposure to the issue. Thus, this Article in no way contends that
legislation should be the only means of attack and that a two-headed approach of legislation
and litigation should be eschewed. Rather, this Article simply asserts that environmental
organizations might be more willing to assist with legislative campaigns.

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of states in which a misdemeanant might be disenfranchised,733 such a
modest campaign would be relatively easy to undertake and would generate
relatively little controversy. In states where misdemeanants have
encountered difficulty exercising their right to vote, either due to
misinformation by local election officials or due to complicated rules and
procedures for absentee voting by people in jail who have been convicted
for a misdemeanor only, the coalition could urge state legislatures to pass
resolutions clarifying state policies or to pass legislation facilitating
absentee voting.
With respect to felon disenfranchisement, the most conservative
measure—one supported by the National Commission on Federal Election
reform, convened in the wake of the 2000 election and lead by former
Presidents Jimmy Carter and Gerald Ford—would be for a coalition of
environmental and social justice organizations to push for legislation that
restores the right to vote to individuals who have served their prison
sentences and who are no longer on probation or parole.734 Such a step
would eliminate the hassle and burden confronting both ex-offenders and
state election officials in states that require case-by-case determinations of
restoration. This type of modification would also remove the obstacle
confronting those ex-offenders who have completed their sentences but
who are barred from the polls because of outstanding fines, restitution or
child support.735
Based on the responses of survey participants, discussed above, as well
as the suggestion of a number of commentators,736 however, this Author
would recommend more progressive legislation—legislation that would
automatically and immediately restore the right to vote following release
from prison, with no complicated reinstatement paperwork, and which
733.
734.

See EWALD, CRAZY-QUILT, supra note 15, at 6.
See NAT’L COMM’N ON FED. ELECTION REFORM, FINAL REPORT 8 (2001),
http://www.reformelections.org/data/reports/99_full_report.pdf; see generally Denying the
Vote, supra note 188 (“The only honorable solution is to automatically restore voting rights
to Alabamians who have completed their sentences.”).
735.
In March 2006, Judge Michael S. Spearman of King County Superior Court in
Washington State ruled that the state could not deny former prisoners the right to vote
simply because they could not afford to pay outstanding court costs–debts that, because of
high interest rates, often grows over time even when former prisoners attempt to pay them
off in monthly installments. See Adam Liptak, Ex-Prisoners With Court Debts Must Have
Vote, Judge Rules, N.Y. TIMES, Mar. 29, 2006, at A18; see generally, JoAnne Page,
President and Chief Executive, The Fortune Society, Letter to the Editor, After Prison, More
Debt, N.Y. TIMES, Feb. 26, 2006, § 4, 11 (arguing that because child support bills are not
suspended during incarceration, and because of the difficulties in finding a job and
affordable housing with no or low wages, many ex-offenders wind up back in prison).
736.
See, e.g., FELLNER & MAUER, supra note 110, at part IX; ISPAHANI, supra note 15,
at 4.

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would also abolish criminal disenfranchisement for probationers. Such a
measure could be politically palatable to many Democratic and Republican
state legislators, especially given that states that limit their
disenfranchisement policies to only those individuals who are currently
incarcerated, appear better able to consistently enforce their
disenfranchisement laws than those that bar non-incarcerated citizens from
voting.737 As Ewald explains:
Purely from the perspective of administrative effectiveness, policies
disenfranchising only incarcerated people appear much more sound that
those disqualifying people who are not in prison. In incarceration-only
states, “purges” are not necessary, though some states use them; no
conviction reporting is needed, though many states do this, as well; no
complicated restoration process is necessary; and there are no worries
about the eligibility of new arrivals to the state, nor about people who
were not registered to vote back when they were convicted. It should be
easy to make sure all public officials know the law, and know how to
implement it effectively and fairly: registrars would simply need to have
the mailing addresses of the state’s correctional facilities, and
investigate any absentee-ballot requests appearing to come from
prisons.
....
Even if one is not convinced on philosophical grounds that all nonincarcerated people should have the right to vote, the practical problems
documented here virtually ensure that the policy cannot be enforced
with perfect fairness and accuracy.738

Similarly, King and Mauer of the Sentencing Project also find that
disenfranchising those on probation and parole presents a number of
practical challenges for election officials and that “permitting voting by all
non-incarcerated persons would place the same requirements on
registration for people on probation or parole as for any other potential
voter.”739 Ironically, this logic actually echoes (albeit faintly) with the
musings of Roger Clegg, President and General Counsel of the
conservative think tank, Center for Equal Opportunity, and former Deputy
Assistant Attorney General in the Reagan and Bush Administrations, who
has suggested that “perhaps not requiring voting is a good thing—not only
is the freedom not to vote an important freedom, but also as a class those

737.
738.

EWALD, CRAZY-QUILT, supra note 15, at iii.
Id. at 18. For a discussion of purges in various states, see generally ISPAHANI &
WILLIAMS, PURGED!, supra note 42.
739.
KING & MAUER, THE VANISHING BLACK ELECTORATE, supra note 15, at 20.

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not motivated to vote are probably less informed and less
conscientious.”740 While Clegg’s comments reek of elitism and privilege,
putting the onus on all who are not incarcerated, irrespective of whether
they have no criminal record or are on probation or parole would avoid
situations such as in New York, where the Brennan Center for Justice at the
N.Y.U. School of Law found that in twenty-four of New York State’s
sixty-three counties, election boards improperly deny voting rights to
people who are on probation or who have completed parole.741 While the
fallout of this revelation was that on June 21, 2006, the New York State
Assembly passed the Voting Rights Notification and Registration Act (Bill
11652)—a bill that would reduce barriers to voting for individuals with
felony convictions by aiming to ensure that New Yorkers with felony
convictions are informed of their voting rights and are provided the
necessary assistance they need to participate in the democratic process742—
states that permit everyone except those incarcerated to vote avoid such
troubles and embarrassment and can avoid charges (usually from the left)
of illegal purges, as well as assertions (usually from the right) of voter
fraud by individuals who should be disenfranchised. As Laleh Ispahani of
the American Civil Liberties Union (A.C.L.U.) writes: “Although
[enfranchising all except the incarcerated] now survives only in the most
regressive European nations, it would constitute a significant movement
forward for most American states, given how far out of step the United
States is on this issue. Moreover, inmate-only disfranchisement—if you are
able to appear physically at the polls and meet age and residency
requirements, you are eligible to vote—would solve the multitude of
problems now bedeviling the administration of disfranchisement policies in
the U.S.”743
The most progressive step for a coalition of environmental and social
justice organizations to undertake and the one which this Author most
endorses would be to campaign for legislation to remove all convictionbased restrictions on voting rights. While proposals to extend the franchise
to those in prison would encounter some opposition from both the public
740.
Clegg, supra note 196, at 163; cf. Norman Ornstein, Vote–or Else, N.Y. TIMES,
Aug. 10, 2006, at A23 (arguing for mandatory voting in the United States).
741.
BRENNAN CENTER FOR JUSTICE AND DEMOS: A NETWORK FOR IDEAS & ACTION,
BOARDS OF ELECTIONS CONTINUE ILLEGALLY TO DISFRANCHISE VOTERS WITH FELONY
CONVICTIONS (2006), http://www.brennancenter.org/dynamic/subpages/download_file_
34665.pdf.
742.
Press Release, Brennan Center for Justice, New York University School of Law,
New York State Assembly Praised for Passing “Voting Rights Notification and Registration
Act,”
(June
23,
2006),
http://www.brennancenter.org/press_detail.asp?key=
100&subkey=36474.
743.
ISPAHANI, supra note 15, at 4.

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and elected officials in this country, eliminating state laws that curtail the
franchise for persons with felony convictions would be consistent with
many foreign countries. From a philosophical perspective, just as the
Voting Rights Act has “‘made America a better, more consistent
democracy,’” to use the words of Rep. John Lewis (D-GA),744 ending
criminal disenfranchisement could well do the same. Perhaps more
poignantly, as Alben William Barkley, Vice-President under President
Harry S. Truman, remarked during World War II when poll tax opponents
sought legislation to eliminate the poll tax: “I know of no more opportune
time to try to spread democracy in our country than at a time when we are
trying to spread it in other countries and throughout the world.”745 Given
our country’s current attempts to spread democracy in the Middle East,
spreading democracy and expanding the electorate in the United States
could send an important message to countries critical of United States
foreign policy and skeptical of its commitment to participatory
government. Just as the Reagan and Bush administrations’ reversal of
United States environmental policies diminished national credibility
abroad,746 the United States appears hypocritical when it attempts to
promote democracy abroad while curbing it (and some would argue
eviscerating it) at home. Otherwise, as Abramsky argues:
We are at risk of becoming something absurd: a culture that prides itself
on, even defines itself by, its democratic institutions and then
systematically removes entire subgroups of people from political
participation. We are becoming a country that boasts of its universal
suffrage yet disenfranchises millions. In short, we are evolving into an
oxymoron.747

From a practical perspective, allowing prisoners to vote would be neither
difficult nor cost prohibitive. Administering absentee ballots to prisoners,
as Maine and Vermont do, would be relatively easy and inexpensive.748
With respect to voting in prison, Ispahani explains that “prison voting is
relatively cheap and easy to administer, because the inmate population is
constantly supervised and counted, and is subject to inexpensive

744.

Rep. John Lewis (D-GA), Keeping The Polls Open, N.Y. TIMES, Aug. 6, 2005, at

A13.
745.
PATRICIA SULLIVAN, DAYS OF HOPE: RACE AND DEMOCRACY IN THE NEW DEAL
ERA 119 (1996) (quoting Alben William Barkley, former United States Representative and
Senator (D-KY), and Vice-President under Harry S. Truman from 1949 to 1953).
746.
See Caldwell, Globalizing Environmentalism, supra note 491, at 64 (citation
omitted).
747.
ABRAMSKY, supra note 37, at 46.
748.
ISPAHANI, supra note 15, at 4.

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administrative control.”749 In other countries where prisoners are allowed
to vote, Ispahani continues, voting inmates neither threaten the security of
the prison nor the security of the ballot boxes.750 In fact, “[i]n Luxembourg,
eligible prisoners may leave the prison to vote with or without an
escort.”751 While even this Author would not venture so far as to suggest
Luxembourg-like policies in the United States, this Author does question
whether it is really lack of political will stemming from fog of the War on
Crime, rather than sturdy philosophical and pragmatic reasons,
encumbering criminal disenfranchisement reform.
If the suggestion to lift all criminal disenfranchisement policies leaves
legislators leery, this Author would encourage organizations and potential
coalitions to pressure their elected officials to 1) identify the reasons for
disenfranchising incarcerated offenders and the important state interests
served by such disenfranchisement; and 2) reconsider the appropriateness
of disenfranchising all incarcerated offenders and specify the crimes for
which disenfranchisement is both reasonable and proportionate (such as
election fraud).752 In addition, any reexamination of legislation pertaining
to the disenfranchisement of incarcerated offenders should scrutinize
criminal disenfranchisement as a collateral consequence rather than as part
of the sentence imposed by a judge; any subsequent legislation should
require that imprisoned offenders only be excluded from voting if the loss
of the vote is imposed by a judge as part of a criminal sentence.753 Such a
modification would be consistent with European courts, such as those in
France and Portugal, which permit criminal disenfranchisement only when
courts specifically include the loss of voting rights in the sentence.754 As
Demleitner contends, “[i]ntegrating collateral consequences into
sentencing . . . would allow the court to factor them into the overall
sentence rather than having the offender perceive them as a separate and
additional punishment. Public awareness of the existence and impact of
such consequences would grow, and perceived injustices might be more

749.
750.
751.
752.

Id. at 21.
Id. at 21-22.
Id. at 22 (emphasis added).
FELLNER & MAUER, supra note 110, at part IX; ISPAHANI, supra note 15, at 6
(“Deprivation of the right to vote should only be a response to abuse of the electoral
process, not to other forms of crime.”); see also EWALD, CRAZY-QUILT, supra note 15, at iv.
753.
Demleitner, Preventing Internal Exile, supra note 32, at 162 (“[T]he imposition of
collateral consequences must be public and should be part of the sentencing process.”); see
also FELLNER & MAUER, supra note 110, at part IX.
754.
See ISPAHANI, supra note 15, at 7; see also Manza & Uggen, Punishment and
Democracy, supra note 58, at 502 (noting that “French courts can . . . impose restrictions on
political rights that extend beyond the prison sentence, but these are part of the original
punishment (and hence do not apply to ex felons).”).

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easily scrutinized.”755 If openly integrating criminal disenfranchisement
into the penalty, rather than allowing it to continue to hide in the morass of
collateral consequences, were accompanied by a requirement that an
individual be informed of his or her loss of the franchise during any plea
bargaining stages,756 then public awareness of the range and scope of
punishment would further increase. This kind of transparency could foster
some of the respect for the criminal justice and political systems that
Demleitner feels is often lost and could act as both a specific and general
deterrent to future criminal endeavors.757
C. Education Regarding State Criminal Disenfranchisement Laws
and Policies
If integrating the loss of franchise into the sentencing process and
permitting the court to factor disenfranchisement into the overall penalty
proves unfeasible or impractical, this Author would recommend the more
modest step of requiring judges and attorneys to inform criminal
defendants that the loss of voting rights exists as a collateral consequence.
Obviously, a situation in which all criminal defendants are informed of all
of the collateral consequences of conviction and imprisonment would be
preferable, but given the difficulties of imposing such a requirement on
judges and attorneys,758 any modification that would obligate judges and
attorneys to inform criminal defendants of just criminal disenfranchisement
would be significant given that “disenfranchising provisions are even more
unknown to would-be offenders than are the details of the penal code.”759
In other words, because disenfranchisement might be the most confusing
collateral consequence,760 any steps to expose this phenomenon to criminal
defendants serves the interests of the individual offender, the overall
fairness of the system, and democracy. In fact, whether the reforms that a
legislature might bring about to its criminal disenfranchisement laws are
modest or robust, an offender needs to be informed of the collateral
consequence of disenfranchisement early and often during his or her
journey through the criminal justice system. As two commentators suggest:
755.
756.
757.

Demleitner, Preventing Internal Exile, supra note 32, at 162.
See sources cited supra notes 166-68 and accompanying text.
See generally Sykes & Matza, supra note 387, at 668 (discussing how deviants
justify their deviant behaviors by condemning the condemners, labelling them “hypocrites,
deviants in disguise, or impelled by personal spite. This orientation toward the conforming
world may be of particular importance when it hardens into a bitter cynicism directed
against those assigned the task of enforcing or expressing the norms of the dominant
society.”).
758.
See sources cited supra notes 166-68 and accompanying text.
759.
Ewald, Civil Death, supra note 15, at 1106.
760.
See id. at 1057.

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At the very first point in time that an individual becomes ineligible to
vote—when a defendant is being sentenced to prison or probation,
where applicable, for a felony crime—the judge should advise
defendants that they will lose the right to vote and when and how they
may regain the right. When paroled, the parole boards or parole officers
should be required to advise parolees if they are, or when they will be,
eligible to vote or register. In states where individuals can vote while on
probation, the sentencing court or probations officers should inform
probationers that they can vote. These notifications will go a long way
toward dispelling the now well-documented confusion surrounding exfelons’ eligibility to vote.761

While informing the offender of the impact of conviction on his or her
voting rights is important at the sentencing and parole stages, it is not
enough. In states where disenfranchised individuals can regain their right to
vote, such individuals need to be educated as to how to do so. As
Abramsky discovered in Montana, Washington, and Wyoming, for
example, most ex-offenders were either misinformed or unaware of the
process by which they could become reenfranchised.762 In Utah, he found
“[s]o pervasive was the word on the prisoners’ grapevine that a felony
conviction resulted in disenfranchisement” that few ex-cons bothered to
register.763 Based on his research in Mississippi, he concluded that “[t]he
combination of true disenfranchisement and street rumor stoked by
correctional officials and judicial authorities had indeed served to decimate
Mississippi’s electorate—removing more than enough voters to swing
close election results.”764 Although some states do indeed inform those
who have completed their sentences how to restore their rights, such efforts
are scattered. As Ewald remarks:
[M]ost incarceration-only states do nothing, while several postincarceration states are relatively active. In Indiana, the “state DOC is
now required to give prisoner notification” of rights restoration after
incarceration; Oklahoma’s DOC “may provide some information,” but
there is no statutory mandate that it do so; Oregon and Nevada both
distribute informational flyers; and Montana’s Secretary of State “works
with advocates for prisoners to release information to the media.” North
Carolina and Nevada also have non-governmental advocacy groups’
761.
ISPAHANI & WILLIAMS, PURGED!, supra note 42, at 10; see also KING & MAUER,
THE VANISHING BLACK ELECTORATE, supra note 15, at 21 (“Corrections officials should
develop policies and practices that routinely inform persons under supervision of the means
by which they can obtain voting rights upon leaving the relevant category of supervision in
that state.”).
762.
ABRAMSKY, supra note 37, at 13, 82.
763.
Id. at 76.
764.
Id. at 208.

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materials on file, and returned them with their completed surveys;
Connecticut state officials are well-connected with local advocacy
groups.765

The inconsistency of these measures has led Abramsky to advocate that
“[t]o overcome this legacy, state and federal governments will have to fund
massive public education campaigns and outreach drives informing
communities of the restoration-of-voting-rights process.”766 Although such
public education campaigns would indeed be a good idea, codifying the
requirement that state departments of corrections (including parole and
probation departments, if they are not under a state’s department of
corrections) notify offenders of their restoration rights and facilitate the
process of restoration, should accompany any outreach drives.767
In addition to informing offenders and ex-offenders about their loss of
voting rights and how to regain the franchise, election officials must be
educated about their state’s voting laws. As noted above, the Brennan
Center for Justice found that more than one-third of New York county
election officials improperly denied voting rights to probationers and those
who had completed parole. Such discrepancies in the treatment of the
franchise for offenders and ex-offenders are not isolated to New York. In a
survey of election officials in ten states, Ewald found that more than onethird of the respondents either misstated their state’s eligibility law or
admitted not knowing a central feature of the law.768 More significantly,
Ewald discovered that “[m]ore than 85% of the officials who misidentified
their state’s law . . . specified that the law was more restrictive than was
actually the case,” 769 leading him to stress, as the Brennan Center for
Justice has, the need to train election officials, in addition to all correctional
and criminal justice officials (particularly probation and parole staff).770
Educating offenders, ex-offenders, correctional and criminal justice
officials, including probation and parole staff, as well as state election
officials, becomes even more imperative when a state modifies its
disenfranchisement laws and policies. One commentator recently expressed
765.
EWALD, CRAZY-QUILT, supra note 15, at 13. See also DARRYL MCMILLER,
DEMOCRACYWORKS, THE RIGHT TO VOTE: THE CAMPAIGN TO RESTORE THE VOTING RIGHTS
OF PERSONS CONVICTED OF A FELONY AND SENTENCED TO PROBATION IN CONNECTICUT 25
(2004), http://www.democracyworksct.org/RightToVoteReport.pdf.
766.
ABRAMSKY, supra note 37, at 15.
767.
Luxembourg, Portugal, and Lithuania, for example, educate prisoners about their
voting rights. ISPAHANI, supra note 15, at 22.
768.
EWALD, CRAZY-QUILT, supra note 15, at i, iii.
769.
Id. at iii.
770.
Id. at iv. See also BRENNAN CENTER FOR JUSTICE AND DEMOS: A NETWORK FOR
IDEAS & ACTION, supra note 741, at 6-7; KING & MAUER, THE VANISHING BLACK
ELECTORATE, supra note 15, at 21.

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support for states that have modified or repealed laws that prohibit exfelons, parolees and probationers from voting, but cautioned that “states
will need to re-educate elections officials, who are often dismally ignorant
of election laws and biased against people who have been convicted of
even minor crimes.”771
Finally, this Author would suggest that any educational campaigns
should not be undertaken without first clarifying policies regarding out-ofstate convictions. As Ewald explains, no state has systematically addressed
the migration to a new state of persons with a felony conviction, nor is
there any consensus “among indefinite-disenfranchisement states on
whether the disqualification is properly confined to the state of conviction,
or should be considered in the new state of residence.”772 Because states
differ in their disenfranchisement laws and because there are interstate
discrepancies in the treatment of out-of-state convictions,773 attempts to
ascertain a state’s out-of-state conviction policies should precede any
individual state educational efforts.
As with legislative changes to state criminal disenfranchisement laws,
discussed in Part IV.B, the extent to which environmental organizations
might participate in educational efforts depends on their willingness to
deviate from their existing agendas, as well as the degree of
progressiveness with which they feel most comfortable. Certainly, any
legislative campaigns come with some risks. Thus, pushing for legislation
that would allow judges to consider the loss of franchise (and any other
consequences that are currently collateral, rather than direct) as part of the
sentence would be the most divisive and most difficult change to
implement. Legislation that requires state departments of corrections
(including parole and probation departments, if they are not under the
jurisdiction of a state’s department of corrections) to notify offenders of
their restoration rights and to facilitate the process of restoration would be
far less contentious. But such a measure is also less preferable to the
transparency of including the loss of franchise in the sentence or informing
the offender of the collateral consequence of a guilty plea and/or
conviction.
The other recommendations in this Section are unlikely to generate
much controversy and should prove comparably easier for environmental
organizations to undertake, especially given that the national organizations
without local chapters may not have the infrastructure to significantly assist

771.
772.
773.

Editorial, Go Away: You Can’t Vote, N.Y. TIMES, Mar. 25, 2006, at A14.
EWALD, CRAZY-QUILT, supra note 15, at ii.
See Ewald, Civil Death, supra note 15, at 1057 (“An ex-felon may vote in one
state, but his former cellmate may not in a neighboring state; an ex-convict who moves
across state lines may gain or lose the right to vote.”).

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in state legislative campaigns. Of the educational endeavors mentioned
here, environmental organizations with a strong litigation component
and/or American Bar Association connections could help encourage judges
and criminal lawyers to inform criminal defendants of the consequences of
conviction. Environmental organizations that rely on direct mail (and
increasingly email) as a form of mass mobilization—and most of the MEOs
do774—could use their expertise in this arena to inform offenders and exoffenders of disenfranchisement laws, as well as to restoration processes.
D. Recommendations Vis-a-Vis the Application of “Usual
Residence Rule” to Prisoners
As discussed in Part II.B.3.b, the Census Bureau applies the “usual
residence rule” to prisoners, who are counted at the locus of their
correctional institutions (including prisons, jails, detention centers, or
halfway houses), which are usually in rural areas, rather than at their home
addresses, which are usually in urban areas. This enumeration dilutes the
voting power of prisoners’ home communities (by diminishing those
communities’ entitlement to legislative seats) and rechannels funding and
resources away from these needy urban areas. Environmental organizations
should take an interest in this phenomenon because not only may vote
dilution impact their members (depending on the size of the legislative
district), but could also tip the balance of state legislatures. The
rechanneling of funding and resources away from needy urban areas could
exacerbate environmental ills in those locations or prevent those
communities from addressing certain environmental problems.
Two methods of rectifying the injustices generated by the application of
the Census Bureau’s “usual residence rule” to prisoners are unlikely to
transpire without great difficulty: the Census Bureau is unlikely to change
its enumeration methodology, and states are equally unlikely to duplicate
the Census Bureau’s efforts, undertaking their own census.775 But states
could modify Census Bureau data without great expenditures of time or
money, and without running afoul of the federal government’s task of
apportioning Congressional seats. As David Hamsher explains in his
Comment, Counted Out Twice – Power, Representation & the ‘Usual
Residence Rule’ in the Enumeration of Prisoners: A State-Based Approach
to Correcting Flawed Census Data:
While the number of congressional seats apportioned to each state is
determined by the federal government, it is up to each individual state
to determine the Congressional and state legislative district maps within
that state. Thus, while a state legislature may not be able directly to
774.
775.

See Mitchell, Mertig & Dunlap, supra note 4, at 16.
Hamsher, supra note 15, at 322.

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force the Census Bureau to alter its enumeration policy, the legislature
does have some latitude in determining what data source to use and how
to use it.776

The State of Kansas, for example, modifies Census Bureau data prior to
apportionment for state legislative purposes.777 While these modifications
pertain to students resident in the state (apportioned to their legal home
address), non-resident military (excluded), and resident military at their
legal residence (included),778 Kansas does not readjust data for the
residence of prisoners.779 The state legislatures of Illinois, New York, and
Texas have all considered bills to reapportion prison inmates to their home
of record, but, with the exception of New York, have pertained only to state
legislative districting (not federal congressional districting or federal
population-based funding).780 None have passed.781 Nevertheless, given the
public’s and Congress’s growing concern over the inequities caused by the
application of the Census Bureau’s “usual residence rule” to prisoners,782
environmental organizations should feel encouraged that pushing for
legislation, either with respect to state legislative redistricting or federal
congressional redistricting, is worthwhile.
V. CONCLUSION
“Environmentalism will not be able to claim full legitimacy for its aims,
however, until it addresses the even graver social ills of poverty,
hunger, prejudice, and economic inequity.”783

In the past few years, as national and state elections have become more
contentious with seemingly more at stake and with margins of victory
shrinking to just handfuls of votes,784 commentators have offered a number
776.
777.

Id. (footnotes omitted).
KAN. CONST. art. 10, § 1; KAN. STAT. ANN. § 11-205 (2001). See also Hamsher,
supra note 15, at 323-24.
778.
KAN. CONST. art. 10, § 1(a)(1).
779.
Hamsher, supra note 15, at 324.
780.
Id. at 324-25 & n.194.
781.
Id. The Texas bill did not pass the Texas Legislature. Id. The Illinois bill, H.B.
0906, 94th Gen. Assemb. (Ill. 2005), sponsored by Democratic Illinois State Representative
Arthur L. Turner, was referred to the Rules Committee on March 10, 2005. That legislative
session has since adjourned. The New York bill, S. 2754-A (N.Y. 2005), sponsored by
Democratic New York State Senator Eric T. Schneiderman, was referred to the Elections
Committee on January 4, 2006. That legisative session has since adjourned. See generally,
Hamsher, supra note 15, at 324 n.194.
782.
See sources cited supra notes 417-20 and accompanying text.
783.
SHABECOFF, supra note 2, at 284.
784.
Despite these phenomena, only seventy-two percent of eligible citizens in the

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of ways to expand the electorate. For example, Norman Ornstein, a
political scientist and resident scholar at the American Enterprise Institute,
a private, nonpartisan, not-for-profit institution dedicated to research and
education on issues of government, economics, and social welfare,
advocates mandatory voting, which is the practice in Singapore, Cyprus,
Austria, Belgium, and Australia, whereby registered voters, who do not
show up at the polls and cannot offer a reason for not voting, pay a small
fine.785 Mark Osterloh, a political gadfly and former Democratic candidate
for governor in Arizona, proposes awarding one million dollars in every
general election to one Arizona resident, chosen by lottery, simply for
voting; the measure, known as the Arizona Voter Reward Act, appeared on
the November 2006 ballot.786 In addition, John B. Anderson, former U.S.
Congressman (R-Ill.), independent candidate for President in 1980, and
current chairman of FairVote, which promotes fair elections, and Ray
Martinez III, United States Election Assistance Commission, propose a
“leave no voter behind” policy, in which all eligible high school students
would be registered to vote before they graduate.787
While mandatory voting would certainly improve turnout, there is
something perverse and anti-democratic about compelling participation—a
point acknowledged by Ornstein.788 Although Ornstein is correct that low
turnout has “ever-greater polarization in the country and in Washington,
which in turn has led to ever-more rancor and ever-less legislative
progress,”789 punishing people for failing to vote would be especially
problematic given that Election Day in the United States is not a national
holiday (meaning that individuals must often decide between voting and
working or school) and would thus suppress the minority vote.790
United States were registered to vote in 2004, according to the Census Bureau. John B.
Anderson and Ray Martinez III, Voters’ Ed, N.Y. TIMES, Apr. 6, 2006, at A25. See also
Ornstein, supra note 740. Participation rates in many primaries hover at ten percent or less
and rise to approximately thirty-five percent in midterm general elections. Id.
785.
Ornstein, supra note 740.
786.
Randal C. Archibold, Arizona Ballot Could Become Lottery Ticket, N.Y. TIMES,
July 17, 2006, at A1. The measure failed. Propositions at a Glance, ARIZ. DAILY STAR, Nov.
8, 2006, at A15.
787.
Anderson & Martinez, supra note 784.
788.
Ornstein, supra note 740 (“Americans don’t like compulsory anything–we value
the freedom not to vote.”).
789.
Id.
790.
See Editorial, Making Votes Count: New Standards for Elections, N.Y. TIMES,
Nov. 7, 2004, § 4, at 10 (arguing for Election Day as a national holiday to “give all voters
time to cast ballots and to free up more qualified people to serve as poll workers”; more
early voting to permit individuals to vote at times convenient to them; “fair and uniform
voter ID rules”; and an end to “the sort of dirty tricks that are aimed at minority voters every
year, like fliers distributed in poor neighborhoods warning that people with outstanding

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The Arizona Voter Reward Act, which has been called “ingenious,”791
“undignified,”792 and “crassly commercial,”793 and which may or may not
have been legal,794 would have, if approved by voters, likely resulted in
higher participation rates in elections. Although it is debatable whether it
would encourage people to study the candidates or issues795 and perhaps to
take a more active role in the political process in general (such as in the
context of environmental decision making), the money, which would come
from unclaimed state prize money, private donations and, potentially state
money,796 could be better spent – such as supporting a poor school district
or health insurance and prescription medication relief for the many
uninsured immigrants and elderly people in Arizona. In addition, the
measure, like Ornstein’s, would do nothing to address the problem of
criminal disenfranchisement—meaning that many of the people who need
the money the most (and who often purchase lottery tickets) will be
ineligible.797 This is especially troubling given that Arizona, which, as of
2000, had 147,340 criminally disenfranchised individuals,798 and which
possesses one of the most draconian criminal disenfranchisement policies
in the United States: it prohibits individuals convicted of felonies while
they are incarcerated, on parole or on probation from voting.799 There is no
automatic restoration for individuals convicted of more than one felony;
such persons must wait two years before applying for civil rights

traffic tickets are ineligible to vote.”).
791.
Paul J. Donahue, Letter to the Editor, N.Y. TIMES, July 24, 2006, at A16. For other
perspectives, see, e.g., Thomas Crowley, Letter to the Editor, N.Y. TIMES, July 24, 2006, at
A16; Edward Lacy, Letter to the Editor, N.Y. TIMES, July 24, 2006, at A16.
792.
Amanda J. Crawford, Voter Lottery May Break Federal Law, ARIZ. REPUBLIC,
July 30, 2006, available at http://www.azcentral.com/news/election/topstories/
articles/0730voter-lottery0730intro.html.
793.
Archibold, supra note 786.
794.
Id. (discussing the different perspectives on the legality of the measure); see also
Crawford, supra note 792.
795.
Compare Archibold, supra note 786 (reporting that Osterloh regards the
“gimmick as the linchpin to improve voter turnout and get more people interested in
politics,” but that many editorial writers and bloggers view the measures as “bribery” and
would “draw people simply trying to cash in without studying candidates and issues”), with
Crawford, supra note 792 (“If it gets more people interested in voting, that would be a good
result. . . . [I]f people do vote they will think about it, and that is better than them not voting
at all.” (quoting Paul Bender, Professor of Law, Sandra Day O’Connor College of Law,
Arizona State University)).
796.
Archibold, supra note 786.
797.
See Donahue, supra note 791.
798.
ISPAHANI & WILLIAMS, PURGED!, supra note 42, at 15.
799.
ARIZ. CONST., art. VII, § 2C; ARIZ. REV. STAT. ANN. § 16-101(A)(5) (2006).

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restoration.800 According to the A.C.L.U., there is no statutory requirement
to inform voters that their names have been taken off the voter list,801
making it difficult to challenge incorrect purges.
Anderson and Martinez’s “leave no voter behind” policy of registering
eligible high school students would certainly improve upon the dismally
low rate of registered voters in the eighteen- to twenty-four-year-old age
bracket—fifty-eight percent in 2004, and would also encourage them to
work in election offices.802 By introducing high school students to the
electoral process and “the importance of active participation in our
democratic system,”803 Anderson and Martinez’s proposal would further
Principle of Environmental Justice #16, which provides: “Environmental
justice calls for the education of present and future generations which
emphasizes social and environmental issues, based on our experience and
an appreciation of our diverse cultural perspectives.”804 But like Ornstein’s
suggestion and the Arizona Voter Reward Act, Anderson and Martinez’s
“leave no voter behind” policy is prospective and would do nothing to
address the millions of Americans who have been disenfranchised by a
criminal conviction. Furthermore, although the “leave no voter behind”
policy could include an educational component that would inform high
school students about criminal disenfranchisement policies (if the laws
were not liberalized or repealed, as this Author recommends), with
significant numbers of young African American men unable to vote
because of a criminal conviction and given the communal nature of
voting,805 it is unlikely that Anderson and Martinez’s proposal would have
the desired impact on a demographic that could most benefit from
increased participation and representation.806
800.
801.
802.
803.
804.

ARIZ. REV. STAT. ANN. § 13-909 to 912 (2006).
ISPAHANI & WILLIAMS, PURGED!, supra note 42, at 15.
Anderson & Martinez, supra note 784.
Id.
LESTER ET AL., supra note 433 at 31-32. Cf. Mitchell, Mertig & Dunlap, supra
note 4, at 19 (“By the late 1960s most environmentalists realized that an exclusively
educational approach to policy change was insufficiently aggressive, although educational
campaigns continue to play an important role in the activities of most environmental
organizations.”).
805.
See sources cited supra note 421 and accompanying text.
806.
Note that Vincent Schiraldi, Director of the D.C. Department of Youth
Rehabilitation Services, recently coordinated a candidate forum and voter registration drive
at Oak Hill Youth Center–Washington, D.C.’s juvenile detention facility. Eighty juvenile
offenders, most of whom were African American, and many of whom were too young to
vote, asked the mayoral candidates questions regarding the closure of D.C. General
Hospital, the rising cost of housing in the city, and the state of public schools in the nation’s
capital. See Nikita Stewart and Robert Pierre, In 2 Wards, Democrats Go for Gray, WASH.
POST, July 20, 2006.

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Repealing, or even just liberalizing, state criminal disenfranchisement
laws could better achieve the goal of increasing voter turnout and
rekindling the spirit of civic participation than the proposals of Orstein,
Osterloh, Anderson and Martinez. In so doing, it would allow the United
States to 1) achieve consistency with other democratic countries;807 2)
avoid some of the appearance of hypocrisy on the foreign stage;808 and 3)
potentially reduce recidivism.809 Given the United States’ history of
minority vote suppression and the continued disproportionate number of
minorities who are in prison and disenfranchised, changing our criminal
disenfranchisement policies would help overcome some of the injustices in
our electoral and criminal justice systems.
In addition to these broad goals, this Article has set forth four arguments
for why criminal disenfranchisement is an environmental issue and why
environmental organizations should join forces with (other) social justice
groups to bring about changes in state criminal disenfranchisement laws.
Naturally, not all of the currently disenfranchised voters would vote if
reenfranchised, nor would they vote for environmental causes or vote for
politicians with environmental sympathies. Thus, this Author does not
suggest that expanding the franchise will result in a “green bloc.”810 As
McCloskey contends: “environmentalists do not seem to be having much
success in getting Presidents into power who share their view of the world,
and cannot look to the Presidency to rescue them from unresponsive
bureaucracies.”811 Similarly, Ingram, Colnic and Mann assert:
[T]here remains some doubt about the efficacy of environmentalist
election strategies in creating an environmentally conscious Congress.
In spite of the victories of environmentalist-endorsed candidates to
Congress, a green wave has not emerged in Congress and mainstream
environmental forces still see the scarcity of committed backers in the
legislature as a major impediment to environmentally sensitive
policy.812

807.
808.
809.
810.

See supra Part II.B.
See supra Part II.B; Part IV.
See supra Part II.A.
Riley E. Dunlap, Public Opinion and Environmental Policy, supra note 450, at

107.
811.
812.

McCloskey, supra note 440, at 86.
Ingram, Colnic & Mann, supra note 433, at 135; cf. Riley E. Dunlap, Trends in
Public Opinion Toward Environmental Issues: 1965-1990, supra note 14, at 113
(“[E]cologically aware public officials should realize that they are in a unique position for
providing leadership on environmental issues, and the polls suggest that it might be
politically astute for them to take the lead in environmental protection. The future of our
environment, as well as that of environmentalism, will be heavily influenced by the
effectiveness of such leadership.”).

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While a broader electorate—one that includes some of the currently
disenfranchised—likely would have resulted in a different presidency in
2000 and perhaps in 2004, in contrast to McCloskey’s assertion, Ingram,
Colnic and Mann are correct that a “green wave” is unlikely to emerge in
Congress—even with the greater civic engagement and political
participation that liberalizing criminal disenfranchisement laws would
engender. As sociologists Robert D. Bullard and Beverly H. Wright assert:
“There is no single agenda or integrated political philosophy binding the
hundreds of environmental organizations found in the nation.”813
But as this Article argued in Part III.D, we need not agree on one
conception of “environment,” on one type of human-nature relationship, on
one set of environmental values in order to increase and improve
environmental protection; diversity is to be encouraged, not condemned.
Although some element of unity is required in order to address today’s and
tomorrow’s most severe ecological crises, unanimity is unnecessary and, as
Shellenberger and Nordhaus suggest, may result in short-sightedness and
stagnation. As the civil rights movement exhibited beautifully in the 1960s,
shared commitment to a cause, not strict adherence to a religious or even
political ideology, is often what is most crucial to the success of a
movement.814 While organization is to be espoused, high degrees of
centralization is desirable in only certain contexts.
This is not to suggest that we need to abandon governmental initiatives
in order to protect the environment—that we should forsake legislation and
litigation, education and advocacy, in favor of ecoterrorism. Dunlap has
noted the “considerable data showing that the public views government as
having primary responsibility for environmental protection.”815 Similarly,
Lynton K. Caldwell writes:
The practical expression of a globalized issue is its acceptance as an
object of negotiation among national governments. No amount of
popular concern over transboundary environmental problems—for
example, over nuclear radiation, pollution of air, water, and outer space,
export of hazardous materials, loss of the world’s genetic heritage, or
the spread of contagious disease—can lead to effective action without
the involvement of government. However, governments (and private
corporate organizations as well) seldom act in the absence of organized

813.
R. Bullard & B. Wright, supra note 438, at 41; see generally Freudenberg &
Steinsapir, supra note 435, at 31 (“Although the grassroots environmental movement is
hardly a homogenous grouping, its organizations, activists, and leaders generally share
certain principles and beliefs.”).
814.
See generally Robert Pape, Op-Ed, Ground to a Halt, N.Y. TIMES, Aug. 3, 2006,
at A21.
815.
Riley E. Dunlap, Public Opinion and Environmental Policy, supra note 450, at 94.

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public demand.816

Indeed, we would be years closer to an environmental Armageddon were
it not for public demand that brought about key environmental statutes and
court cases within the past thirty-five years. And in order to further slow
the planet’s decline, we need good elected officials to help craft creative
environmental policy and responsible judges to ensure the effective
enforcement of environmental law.
But we also cannot expect
environmental law and policy alone to protect the environment.817
“Progress cannot be made with regulatory Band-Aids, blind faith in the
invisible hand of the market, or other facile remedies,” Shabecoff contends.
“There must be changes in our institutions, in our economic systems, in
technology, and in social relationships in ways that reflect our hard-won
understanding of the changing balance between human beings and
nature.”818 Perhaps with an expanded electorate, and subsequently greater
civic engagement and involvement in environmental decision making, and
a richer, more elaborate typology of environmental values, we can foment
the ideas, ingenuity and creativity necessary to bring about these
institutional, economic, social, interpersonal, political and environmental
changes.

816.
Caldwell, Globalizing Environmentalism, supra note 491, at 66; Cf. Interview by
MSNBC Live Talk with Jerry Adler, Senior Editor, Newsweek (July 12, 2006), available at
http://www.msnbc.msn.com/id/13768340/site/newsweek/print/1/displaymode/1098/ (“[I]t
will take more than just the effort of ordinary citizens to solve a problem of this size [global
warming].”).
817.
See generally ENVTL. LAW INST., supra note 618, at 2 (discussing federal
environmental standards as often setting a “floor” which states may then exceed, and
characterizing these federal statutes as “the ‘safety net’ for environmental protection”); cf.
Cole, supra note 4, at 648 (stating that “the more desperate the struggle, the more willing
you are to try anything - even the law.”).
818.
SHABECOFF, supra note 2, at 277.

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