This year marks an important milestone for our democracy – the 50th Anniversary of the 26th Amendment to the United States Constitution. Yet, despite a recent Presidential proclamation recognizing the significance of this moment, few Americans know much about this part of our nation’s voting rights history.
The 26th Amendment is not taught in most public-school social studies classes, college campuses, or even law school. Yet, in 1971, it reduced the constitutional voting age from 21 to 18, enfranchising millions of emerging adults who previously were not able to cast their ballots. Its ratification was also very much connected to the civil rights movement and racial justice efforts of the 1960s.
Due to this country’s Janus-faced approach to youth and justice, however, many in this country lost their right to vote long before their 18th birthday. Such individuals were made to stand trial as adults for wrongdoings of their childhood. Beyond being punished with long periods of incarceration for juvenile actions – they had their voting rights stripped away too; sometimes for life.
This year, in the case of Jones v. Mississippi, the United States Supreme Court reiterated that youths are categorically less culpable than adults. As a result, they may not be mandatorily sentenced to life without parole. Thousands of young people across the country are now having their unconstitutional sentences revisited to account for their youth at the time of their crimes. And many previously sentenced to die behind bars have now been released.
Many of these individuals are now barred from voting – potentially for the rest of their lives in some places – even though their crimes were committed at age 17, 16, 15 or even younger. This is not consistent with Jones and the Supreme Court’s other cases that say children are different.
Juvenile lifers are not the only ones who find themselves disenfranchised. According to a 2020 report from Human Rights for Kids, nine states do not restore voting rights for formerly incarcerated children who have been released from prison, and have no mechanism that allows those who have completed their sentence to regain the right to vote. Some of these states permanently disenfranchise formerly incarcerated youth who were convicted of certain offenses, while others make restoration of voting rights a near impossibility by requiring the completion of lengthy or lifetime parole terms before formerly incarcerated youth can exercise this fundamental right.
Voting rights are taken away from some children before they are even old enough to cast their first ballot. This can occur without any consideration or discussion by the judge who imposed their punishments. Indeed, it is likely that many sentencers do not even realize that they are disenfranchising the children who stand before them when imposing their judgments.
As with most injustices in this country, childhood disenfranchisement practices are visited primarily upon persons of color. Black teens, in particular, find themselves improperly adultified by our systems of justice, which treat the childhood transgressions of white children very differently. After the justice system stamps Black youths as felons, reducing their life chances, they are further marginalized by being removed from the democratic process.
In 2019, Human Rights for Kids worked to pass SB 573 in Arkansas to create a pathway to voting rights restoration for formerly incarcerated youth with near unanimous bi-partisan support. In ending mandatory lifetime supervision for formerly incarcerated youth, it ensured that such children are not permanently labeled a threat to our society. This reform also allowed such youth access to the ballot box.
Similarly, last year the District of Columbia took action to abolish criminal disenfranchisement, noting the historic disproportionate impact upon Black citizens based upon policing and prosecution practices. In doing so, it further acknowledged that civic engagement and responsibility are important features of rehabilitation and reintegration. This is especially so for children that are ensnared by our criminal court system and sentenced as adults.
We should all take heed of the President’s call to honor the 26th Amendment. No child should be preemptively disenfranchised before they ever have the chance to visit a voting booth.
Mae C. Quinn is a Professor of Law and Director of the Youth Justice Clinic at the U.D.C. David A. Clarke School of Law. She has been a criminal defense, youth justice and civil rights lawyer for 25 years. Prof. Quinn shares these views in her individual capacity and institutional affiliation is provided for identification purposes only.
Greg Leding is a Senator in the Arkansas Legislature, where he has served since 2011. He has worked in that capacity on a range of youth justice issues, including SB 573, and proudly supports the work of Human Rights for Kids.
Suggested citation: Mae C. Quinn and Greg Leding, Amending Our Anti-democratic Ways: The Criminal Justice System Must Stop Disenfranchising Children, JURIST – Academic Commentary, August 4, 2021, https://www.jurist.org/commentary/2021/08/quinn-leding-criminal-justice-disenfranchising-children/.
This article was prepared for publication by Sambhav Sharma, a JURIST Staff Editor. Please direct any questions or comments to him at firstname.lastname@example.org