An Accepted Injustice
Millions of prisoners in America are banned from voting. Why?
By: Joey Handel and Carter
“Why this fear?
What can be worse than life in prison?
Having choices
but being unable to choose.”
-Llujeta Lleshanaku, Prisoners
One of the main legislative goals of the nascent Biden administration (going back to when it was just the Biden campaign) has been the passage of H.R. 1, also known as the For the People Act. It’s a package that would be a huge win for voting rights, a massive bulwark against the wave of antidemocratic voting restriction measures that are on the table in state legislatures across the country, and reform our absurd election systems in positive ways. But it fails to meet the lofty mark Democrats should set for themselves — in this rare moment of trifecta control — in one important respect: it does not offer the right to vote to the millions of Americans who compose the largest incarcerated population in the world.
It didn’t have to be this way: during the amendment process of H.R. 1, freshman Congresswoman Cori Bush offered an amendment granting voting rights to individuals serving felony prison sentences. Predictably, the amendment failed. Three-quarters of the House voted against, quickly ensuring that it would not be included in the package, a reflection of the general public’s opposition to the proposal. There are many areas of optimism in criminal justice today, but this issue is one of many where the consensus seems to be stuck in the 1990s “tough-on-crime” mindset. Asking proponents of universal adult suffrage “so you want the Boston Bomber to vote?” echoes debate moderators asking Michael Dukakis if he would support the death penalty for his wife’s murderer during the 1988 presidential campaign. For the time being, the politics of fear on this issue have prevailed, but it’s worth considering the underpinnings of this debate. In our view, Congresswoman Bush’s amendment should have passed, as the arguments for disenfranchisement fail on moral, political, and practical grounds.
The philosophical principle behind allowing all adult citizens to vote goes to the very foundation of the idea of democracy. Each style of government, from authoritarian to direct democracy, offers its own version of the social contract, in which some rights and personal freedoms are sacrificed in exchange for protection from threats to order and safety that individuals are unable to maintain on their own. In our republic, control over our representatives through voting is the mechanism by which that exchange is vindicated. In a democratic system, the right to vote is the defining feature, and therefore should be guarded in a way that reflects its place in the practice of popular sovereignty. Essentially, the starting point for this discussion should be universal enfranchisement: if all men are truly created equal, there is no reason for one to be able to vote and not another. As stakeholders in this democracy, every person is entitled to control of the enterprise as a benefit of their status as citizens. When governments, empowered to make decisions on policy, are made the arbiters of who can and cannot take part in the democracy, the life of the experiment is threatened.
Incarceration inevitably results in the deprivation of certain constitutional rights: it’s hard to imagine a good-faith case for the maintenance of the Second Amendment, for example. But it would be a mistake to see the loss of rights in prison as part of a felon’s debt to society as opposed to unavoidable in the course of the main M.O. Beyond controlling freedom of movement and the prisoner’s residence, every aspect of the prison’s power over their inmates should be under scrutiny. The power to detain should not become a blank check to deny constitutional rights, a principle that is well recognized by both the public and the judicial precedent. In several cases, such as Cutter v. Wilkinson, the Supreme Court has upheld the freedom of religion for the incarcerated, in addition to–as was at issue in that case — laws that are aimed to shore up that freedom. While the court has also upheld prison disenfranchisement laws as constitutional on Fourteenth Amendment grounds, it is clear that SCOTUS would not interfere with a state choosing to re-enfranchise their prisoners. Just as with the practice of religion, granting the incarcerated with the right to vote would provide no hindrance to a prison’s core operations. Either by an absentee system or a simple polling station, allowing prisoners to vote would require no significant compromise in the everyday operations of the prison. Nothing about the ostensible goals of incarceration: deterrence, rehabilitation, and incapacitation, and restitution, are in irreconcilable conflict with allowing those convicted of a crime to maintain their right, as citizens, to vote.
Many arguments in favor of disenfranchisement rest on a notion that there are good voters and bad voters, and that on its face, those convicted of felonies clearly fall in the latter category. In that same vein, it’s taken as an article of faith that felon and prisoner disenfranchisement is the sensible thing to do (and that we’ve always done it, a myth that will be addressed later). It is not clear that felons, even if we wrongly assume that they were convicted in a perfectly equitable system, are bad voters. Consensus views on attributes of bad voters are that they are uninformed, gullible, or otherwise malign forces in the political process. There is no evidence to suggest that any of these traits are prohibitively common in prisoners.
But more importantly, to even engage in the argument about good and bad voters is to play a dangerous game. Decency and dishonor are not completely subjective; however, the question is not whether people fall somewhere on that spectrum or whether the crimes people are convicted of are wrong, but whether any institution is fit to determine that standing. In some ways, it is no different than the naivete of supporters of the modern surveillance state who say “if you’re not doing anything wrong, you have no need to worry”, ignoring the obvious fact that granting the power to surveill cell phones or to strip the right to vote means it will invariably be abused by those who hold it. Those who argue in favor of leaving the system unchanged would have you believe that it is simpler than it is; which is why they bring up the question of the Boston bomber’s voting eligibility as opposed to, say, your neighbor with substance use disorder. Attempting to draw a line and declare that people on one side are sufficiently moral to participate in the process and people on the other are not is an impossible undertaking, and one that is doomed to discriminate in ways that are completely unjust. A brief look at the mechanism by which that sorting occurs, the criminal justice system, reveals the specific ways in which it is unjust.
Today, more than ever, Americans understand the urgent need for massive criminal justice reform. The cause has elicited unified calls for change, cutting across the arts, sports, media, and even party lines. Take Louisiana, for example. In 2019, New Orleans Saints star Demario Davis penned an op-ed in The Advocate, the state’s largest daily paper, highlighting the severe lack of resources provided to New Orleans public defenders, especially in comparison to prosecutors. The Orleans Public Defenders Office, which handles roughly 20,000 cases a year, had about 60 attorneys and roughly one-quarter of the funding that the District Attorney’s office had at the time of the op-ed. These are just the statistics for one jurisdiction, and it is reflective of a much larger problem: the criminal justice system is massively inequitable, especially toward the indigent and people of color. This system, by design, forces people to make life-altering choices in the worst possible way. Faced with the possibility of pre-trial detention because they cannot afford bail, many will take one-sided plea deals from prosecutors partially because of inadequate legal representation due to grossly underfunded public defense. This system, which is contingent on the defendant’s affluence and the prosecutor’s preference, is a shockingly arbitrary method of determining guilt and innocence, and by proxy the right to vote.
Also arbitrary is how immensely localized the distinctions are: if you have committed a “wobbler” (acts that can be charged as a misdemeanor or a felony), your freedom and right to vote is likely at the whim of an elected prosecutor. If they have regressive views on criminal justice, you may have a felony record for the rest of your life. If they are part of the recent wave of progressive prosecutors, you might only see a misdemeanor, or no charge at all. None of this suggests an efficient, accurate, or equal process of sorting out whose voice should be heard in the democratic process. The results the criminal justice system produces would be unacceptable even if they were unintentional, but an examination of the history exposes that racial and socioeconomic biases in these results are by design.
Two states in the union (as well as several localities) already know just how simple it is to grant the right to vote to prisoners. In Maine and Vermont, felons have been voting for over two hundred years, and the grave consequences that result from that radical policy are… yet to emerge. They are, if anything, among the most politically moderate states, electing both Democrats and Republicans to statewide office in the previous three cycles. The reason these states grant the right to vote to felons is remarkably telling about just how far we have strayed from our founding values on this issue. Felons vote in these states not as a result of an activist push during one of the progressive “moments” in this country’s history, but because their state constitutions were drafted with the express intent to grant voting rights to all citizens of age. It’s worth emphasizing: several states, up until the end of the nineteenth century, were like Maine and Vermont, having drafted state constitutions that allowed prisoners to vote. So what changed?
Many of the prison disenfranchisement laws we live with today are a product of the post-Reconstruction period. As part of the process of instituting Jim Crow, they enacted laws that made it possible to disenfranchise Black people at scale, including a slate of felony disenfranchisement provisions. In a telling instance in Alabama, as an article on ACLU.com describes, the state constitution was amended at a constitutional convention to include a larger number of crimes as sufficient to warrant disenfranchisement. The motivation, as relayed by the president of the constitutional convention? The “menace of negro domination,” as he put it. This is the racist, cynical logic at the heart of our status quo on this issue. That modern arguments to preserve the current regime do not rest on explicit calls to deny Black people the vote do not change the well-documented racist history of the policy. Defending it requires explaining why we should expect egalitarian outcomes from a process that was empirically designed, and now works, to prevent Black people from voting.
It is quite clear that there are glaring contradictions in both sides’ support for disenfranchising the incarcerated. For those on the left, there is a broad recognition of the ills of the criminal justice system and strong support for civil rights. As mentioned, we have come a long way on the issue of criminal justice reform. While there are plenty of qualifiers to add on the specifics of the legislation, the fact that a Republican president passed and campaigned on a criminal justice reform bill is a sign of just how far public perception has shifted since the 1990s. Many on the left understand that America disproportionately incarcerates African Americans and mercilessly preys on those without the means fight back in court. However, when it comes to extending this same line of thought to whether this flawed system should determine who should and should not be able to vote, the support for reform falls out. If you concede that America incarcerates far too many people in a far too inequitable fashion, then it makes no sense to argue that this exact same system should have a direct bearing on whether one should have the right to vote. And yet, the policy change Bush’s amendment would enact is an incredibly unpopular one among Democratic voters.
Conservatives also live with a sort of cognitive dissonance to arrive at their support for the disenfranchisement of the incarcerated. Conservatives will often tell you that the government is massively incompetent, and that its overwhelming size and scope impinges on our freedoms. When government-run healthcare or insurance has been proposed, it has been met with universal rejection among the Republican party, citing, among other things, the inability of the government to handle such a massive undertaking due to general incompetence. It is a contradictory stance to argue that on one hand, the government is an inefficient and bureaucratic nightmare that can’t get anything right, and on the other hand, it should have the power to take away one’s right to vote through the criminal justice system. You can believe one of these things or the other, but you cannot believe both.
Ideological coherence is one thing, but there are also practical reasons for conservatives to join a bipartisan coalition on this issue: imagine a restaurant owner, found to be flouting mask mandates, convicted of a felony by a local Democratic prosecutor and their right to vote taken away. If you’re the entrepreneur, debate the merits of the mandate all you want, the system has taken away your most effective method of weighing in on the policy. In granting powers to the state, it’s worth considering what the consequences of those powers in the hands of your political opponents are, and whether it’s worth hurting people you want to see hurt to give those powers away.
It is incumbent on anyone trying to push for an issue to be realistic about the obstacles that push faces, and prison enfranchisement faces a steep uphill climb. Tropes about felons in this country are deeply baked into the public psyche, and anyone supporting the policy opens themself up to being cudgeled by their political rivals. As mentioned before, the vast majority of Americans are against allowing incarcerated felons to vote, which makes it unsurprising that Bush’s amendment was rejected by most of her colleagues on both sides of the aisle. Electoral concerns can be a valid point when discussing policies and their support among Congress, but politics should not, and do not dictate morality. Fighting for things that are right, even when they are unpopular, is our duty to our countrymen. And as we have laid out, there is an irrefutable philosophical and practical argument to be made that no adult citizen should lose the most basic right to participate in our democracy.
And despite low favorability numbers, there are several reasons to be optimistic about the political future of re-enfranchisement. According to a report from the Sentencing Project, “since 1997, 25 states have modified felony disenfranchisement provisions to expand voter eligibility.” This past election, nearly 60% of Californians voted to restore suffrage for people on parole for felony convictions. Congresswoman Bush’s amendment, despite getting no Republican votes, got support from 45% of House Democrats, including Hakeem Jeffries, who is likely Nancy Pelosi’s heir apparent as leader of the caucus. While there is a steep climb to majority support in the House, getting nearly half of congressional Democrats on board with such an amendment would have been completely incomprehensible just a few short years ago.
On the popularity front, enfranchisement for the incarcerated is still a ways away from having the support of most Americans, but there is reason to believe the ground could shift. There are other policy questions that have experienced a tectonic change in approval at a rapid pace, leading to waves of policy change. Hot-button issues like same-sex marriage and marijuana legalization have seen whiplash-inducing shifts in public opinion. More to the point, district attorneys running on openly progressive platforms promoting alternatives to incarceration and punitive solutions are sweeping the country as this piece is being written. Given the prevalence of legislatures reforming regressive felony disenfranchisement laws, the success of direct democracy measures doing the same, and nearly half of House Democrats supporting the Bush amendment, it seems very feasible that the once unchallenged consensus on allowing the incarcerated to vote is beginning to crack. For the first time in a while, there’s hope for those who fight for the day when everyone is afforded the right to vote.
H.R. 1 represents progress on voting rights, but it cannot be the end. None of us can be truly free until we all are, and the only way to achieve that is to reach the natural endpoint of this experiment that began 250 years ago: universal suffrage.
