The Problem of Habitual Offender Laws in States with Felony Disenfranchisement

Loehr, Daniel | January 1, 2023

Habitual offender laws operate to increase the sentence of an individual if that person already has a felony conviction. At the same time, 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, 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 women, 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.