The right of inmates to vote is not a radical idea. In addition to Maine and Vermont, 21 other democracies, including Canada, Sweden and Israel, allow all prisoners to vote.
Seventy (70) civil rights and advocacy groups have now joined Sen. Bernie Sanders (I-VT) in calling for restoring the right of all inmates to vote. Although Senators Elizabeth Warren (D-MA) and Kamala Harris (D-CA) have stopped short of agreeing with Sanders’ proposal, both appear to be considering it. Warren stated simply that she was “not there yet.” Harris, a former prosecutor, who is focused on restoring post-release felon voting rights, acknowledged that “we should have that conversation.”
Inmate voting rights advocates argue that, while the rule of law requires appropriate punishments for crimes, this can be done without sacrificing the right of every citizen to vote — a right that provides the cornerstone for a free and democratic society. Moreover, there’s a rehabilitative purpose. Inmate voting encourages prisoners, who retain their First Amendment rights while incarcerated, to responsibly stay connected or reconnect with society. Indeed, some inmates have gone on to become “eloquent advocates” for social justice.
Ironically, while incarcerated, Dr. Martin Luther King, Jr. penned his famous Letter from a Birmingham Jail. Nelson Mandela, who spent 27 years in prison, would go on to become the formerly apartheid South Africa’s first black President and a recipient of a Nobel Peace Prize.
Opponents of inmate voting appeal to the natural repugnance the electorate holds towards some of our nation’s most heinous crimes and those who carried them out: individuals, like Dzhokhar Tsarnaev, who was convicted as the Boston Marathon Bomber and Dylann Roof, who was convicted for the Charleston Church Massacre.
While gut level repugnance towards these especially heinous crimes is understandable, from the perspective of societal needs, there are multiple reasons to question the validity of adding, as a form of punishment, inmate disenfranchisement to imprisonment, fines, restitution, and, in the cases of Tsarnaev and Roof, to their death sentences…
• Hypocrisy
President Donald J. Trump, through his campaign press secretary, Kayleigh McEnany, labeled the concept of inmate voting rights as “deeply offensive“.
That would be the same Donald J. Trump who has repeatedly incited violence against others, including Rep. Ilhan Omar (D-MN). That same Donald J. Trump steadfastly supports the terrorist-enabling NRA and refuses to support legislation designed to prevent racist right-wing white nationalists, like Roof, from acquiring the guns he used to kill so many innocent victims.
While it is difficult to discern the detriment society would experience if either Tsarnaev or Roof cast a vote before their respective executions, it is not difficult to discern the carnage wrought by either our out-of-control gun culture or as a result of near daily incitements uttered by the President of the United States.
• Deterrence?
Research has failed to disclose any evidence that adding disenfranchisement to other criminal penalties — incarceration, fines, restitution — has deterred the commission of further crimes. But that should come as no surprise. If, as asserted by Columbia University’s Jeffrey Fagan, there’s a significant question as to whether the death penalty serves as a deterrent to murder, surely that wouldn’t change if we added disenfranchisement to other criminal penalties.
• Context
By focusing only on the most heinous crimes and convicted criminals, the opponents of inmate voting evade a troubling reality.
As we observed some years ago, quoting Vicky Paez of Global Research:
Mass incarceration, which disproportionately affects the poor and people of color, is the product of a draconian “war on drugs” and the perverse economic incentives behind the prison-industrial complex: (1) a privatized prison industry whose financial success depends on greater numbers of prisoners serving lengthier sentences, and (2) the ability of large corporations to exploit prison slave labor, paying as little as 17 cents per hour.
As Rep. Alexandria Ocasio-Cortez (D-NY) noted recently in a series of tweets, there are far greater numbers of people behind bars for non-violent drug offenses than for heinous crimes, like the the ones committed by Tsaernev and Roof. Yet, with the exception of Maine and Vermont, every one of those inmates suffers disenfranchisement in addition to whatever other criminal penalties they are paying as the price for their non-violent crimes. To that, one could add an estimated 6% of America’s 2.2 million prisoners were wrongfully convicted. That’s 132,000 inmates who were not only erroneously deprived of their freedom, but also deprived of their right to vote.
• Middle Ground?
Although Sanders argues that drawing lines between the types of crimes that warrant disenfranchisement, in addition to other punishments, entails a “slippery slope,” in practice, there are 14 other countries that permit inmate voting but make exceptions for specific felonies. Potentially that would result in the disenfranchisement of as many as 6% of inmates who may have been wrongfully convicted.
Nevertheless, Sanders and other inmate voting rights advocates, such as the ACLU, should be prepared to compromise, at least initially. Doing so would take the sting out of an opposition that wants to focus only on the most heinous crimes. It would make reform more palatable to those who shiver at the thought of allowing the Boston Marathon bomber to cast a vote before he’s executed.
• Felony Disenfranchisement Distinguished
So far, we’ve only addressed inmate voting rights while incarcerated. In addition to Maine and Vermont, in both the District of Columbia and 14 other states, voting rights are automatically restored the moment the inmate is released from prison. In 34 states, disenfranchisement is extended to former inmates either for defined periods (parol, probation etc.) or indefinitely.
Globally, those nations which do not automatically restore the franchise immediately upon release from prison are within a distinct minority. Only four (4) other democratic countries impose post-release voting restrictions.
Indefinite felony disenfranchisement laws have been historically traced to the Jim Crow era. Although, last November, this form of Jim Crow at the polls was soundly defeated by voters in Florida and Louisiana, that hasn’t prevented Florida Republicans from tirelessly working to undermine a voter approved amendment to the Sunshine State’s constitution that rejected post-incarceration disenfranchisement with a majority of nearly 65% of the enfranchised population.
Post-release disenfranchisement has indeed been a slippery slope — a point that was underscored by journalist Greg Palast when he exposed a “scrub list” of thousands of innocent voters who were removed from Florida’s computerized eligible voter rolls in 2000 simply because they had the same or similar names to those of disenfranchised convicted felons. Yes, even many who hadn’t lost their right to vote due to imprisonment had lost their voting rights due to Florida’s disenfranchisement policy anyway.
While it might be more politically expedient to first seek to extend the franchise only to those who have not been convicted of specified ignominious felonies, this does not evade the fact that no useful societal purpose — other than to satiate punitive societal instincts — is served by inmate disenfranchisement. And even if reasonable minds could disagree as to the need to satisfy that instinct, that still doesn’t make the idea of preserving the right of all inmates to vote radical, dangerous or crazy.
Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing
Ernest:
Glad to hear you’re back on Bernie’s team. I was proud of him for giving a direct answer to the gotcha question about the Boston Bomber.
We’re never going to be able to find anybody like Bernie. His slogan, “Not Me, Us” is brilliant. He’s a great teacher and has already changed the entire conversation in this poor, propagandized nation of ours.