By Helen Gibson
© February 1, 2015, The Virginian-Pilot

The past four Virginia governors and various advocacy groups have worked to reform state laws on the restitution of civil rights for felons and ex-felons. They’ve made significant progress.

Yet Virginia remains one of the most restrictive states in the nation, with approximately 450,000 of its 6.4 million voting-age residents not allowed to vote. Roughly 350,000 of the disenfranchised are ex-offenders.

As of 2010, more than 20 percent of the state’s voting-age African American population and nearly 7 percent of the state’s total population 18 and older were disenfranchised due to a felony conviction.

Those statistics reflect both the exhaustiveness of Virginia’s felon disenfranchisement laws and the fact that African Americans in Virginia are currently incarcerated at a rate approximately six times that of the white population. The present-day disproportionate impact of Virginia’s felon disenfranchisement laws on African Americans may be connected to the history of the laws.

Virginia’s felon disenfranchisement laws date back to at least 1830, when the 1776 Constitution of Virginia was revised to take away the voting rights of “any person convicted of any infamous offense.”

The state’s first explicit felon disenfranchisement clause was written in a climate of racial hostility; the governor of the state rhetorically linked free black Virginians with criminality and argued against the idea of universal suffrage. Free black citizens of North Carolina and Tennessee, meanwhile, had the legal right to vote in some elections.

Even in the antebellum era, race-based laws governing felony conviction and sentencing in Virginia were not new. Legal statutes on felonious theft were one of the earliest means of criminalizing Native and African American members of the colonial Virginia population.

Native Americans were singled out in laws punishing livestock theft as early as 1632. A 1723 catch-all law disenfranchising free “Negros, Mulattos and Indians” while simultaneously legislating more comprehensive incarceration and capital punishment for slaves convicted of felonies, was typical of the colonial era.

By the early 19th century, the perceived threat of free African Americans’ political agency had inspired such harsh punishments as a temporary measure allowing free black Virginians sentenced to two years or more in the state penitentiary to be whipped and sold into slavery.

In 1828, this practice was substituted with mandatory minimum penitentiary sentences of five years for black Virginians and two years for whites. In 1860, free black Virginians convicted of any offense punishable with imprisonment could legally be sold into slavery.

After the Civil War, the word “felony” was officially added to the state’s disenfranchisement clause in the revised constitution of 1870.

Soon after, Virginia legislators (as in other Southern states) added petit larceny, a crime of which former slaves could be easily accused and convicted, to the state’s list of disenfranchising offenses. “Colored” voters were excluded from the polls in some of Virginia’s majority-black precincts using officially race-neutral laws and lists of African American felons and petit larcenists.

For much of the 20th century, the commonwealth employed the elaborate felon-disenfranchisement clause enshrined in the notoriously racist climate of the 1901-02 Virginia Constitutional Convention. That clause was finally modified in a 1971 revision to the state constitution. The simpler, though still far-reaching, 1971 felon disenfranchisement clause has remained on the books.

Proponents of civil and voting rights, including for those in prison, argue that those rights keep felons connected to society at large and support the purported objective of incarceration, which is rehabilitation. The United States is the only major industrialized, democratic country that imposes such broad, permanent felon disenfranchisement.

Virginia is not alone in its continued denial of civil rights to inmates, parolees, probationers and many ex-offenders; there are currently more than 5.8 million disenfranchised felons and ex-felons nationwide, nearly 40 percent of whom are African American.

The moment has arrived, however, to acknowledge both the racist origins and continued racial impact of Virginia’s felon disenfranchisement laws. Virginia has long been a state of “firsts.” There is still time to become the first Southern state to guarantee civil rights to all of its citizens, including ex-offenders.

Helen Gibson, a civil rights history scholar, is the author of a history of Virginia’s felon disenfranchisement laws in the current issue of The Virginia News Letter, published by the University of Virginia’s Weldon Cooper Center for Public Service, www.coopercenter.org/publications/virginia-newsletter.