The Problem of Habitual Offender Laws in States with Felony Disenfranchisement

24 Pages Posted: 6 Aug 2022 Last revised: 5 Jan 2023

Date Written: December 12, 2022

Abstract

Habitual offender laws operate to increase the sentence of an individual if that person already has a felony conviction. Many people with felony convictions cannot vote or run for office, due to felony disenfranchisement laws. Thus, habitual offender laws target a formally disenfranchised group—people with felony convictions. That creates an archetypal political process problem. As John Hart Ely argued, without controversy, laws that target a formally disenfranchised group are tainted and deserve heightened constitutional scrutiny. When reviewing habitual offender laws under the Eighth Amendment, however, courts have applied the opposite of heightened scrutiny—they have applied an extreme form of deference for decades.

This phenomenon of deference despite disenfranchisement creates a cruel democratic purgatory. It is the institutional equivalent of disenfranchising people with pre-existing health conditions, passing a health insurance law that excludes them, and then declining to hear their constitutional challenges out of deference to the democratic process. Or disenfranchising people with uteruses, criminalizing abortion, and shutting the courthouse door.

This Article describes this dysfunctional dynamic and offers a solution: if a court is reviewing a habitual offender law from a state with felony disenfranchisement, it should apply heightened scrutiny, not deference.

Keywords: felony disenfranchisement, habitual offender laws, double punishment laws, eighth amendment, cruel and unusual, political process theory, felon disenfranchisement, three strikes laws, proportionality, life without parole, deference, political process theory, John Hart Ely

Suggested Citation

Loehr, Daniel, The Problem of Habitual Offender Laws in States with Felony Disenfranchisement (December 12, 2022). Forthcoming, Journal of Criminal Law and Criminology, Vol. 113, No. 2, 2023, Available at SSRN: https://ssrn.com/abstract=4180572 or http://dx.doi.org/10.2139/ssrn.4180572

Daniel Loehr (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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