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From ‘civil death’ to ‘civic bonds’: There is no (good) reason prisoners can’t vote

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From ‘civil death’ to ‘civic bonds’: There is no (good) reason prisoners can’t vote

There are various arguments for why people in prison should not be allowed to vote; none of them is persuasive. Recently, when CNN hosted town halls with contenders for the Democratic nomination for president and some were asked whether people serving time should be able to vote, Senators Kamala Harris and Elizabeth Warren dodged the question. Pete Buttigieg flatly said no:

“I believe re-enfranchisement is important, but part of the punishment when you’re convicted of a crime and you’re incarcerated, you lose certain rights, you lose your freedom. I think during that period it does not make sense to have an exception for the right to vote.”

The idea that somehow a person loses all rights upon entering prison and allowing that person to vote would be an “exception” is false. (It is also not too far from the Fox News take on the matter: “When you’re in prison you lose rights. It’s called prison, not spring break.”) As Jamelle Bouie recently noted, incarcerated people retain many rights, “some of which touch on the political rights and responsibilities of citizenship,” including, at least in theory, freedom of worship, freedom to protest mistreatment, and some free speech rights.

Senator Bernie Sanders, unlike Buttigieg, was expansive and absolute in his view, going beyond even those who would grant the vote to those with nonviolent convictions: “Once you start chipping away and you say, ‘Well, that guy committed a terrible crime, not going to let him vote.  Oh, that person did that, not going to let that person vote,’ you’re running down a slippery slope,” he said. Being in prison should not interfere with the “inherent American right to participate in our democracy.”

Some who favor felony disenfranchisement are naked in their aims. In 2004, the Alabama Republican Party chairperson said, “As frank as I can be, we’re opposed to [restoring voting rights] because felons don’t tend to vote Republican.”

Others, such as Roger Clegg of the Center for Equal Opportunity, justify their stances with loftier ideas. An op-ed piece he contributed to the New York Times in 2016 relied on such poor logic that an analysis would merit its own newsletter, but his central thesis is shared by many: “if you won’t follow the law yourself, then you can’t make the law for everyone else, which is what you do—directly or indirectly—when you vote.”

In response, Janai Nelson, associate director-counsel of the NAACP Legal Defense and Educational Fund, wrote, “The laws that prohibit an estimated 5.85 million Americans with felony convictions from voting are one of the last remaining legal barriers to full democratic participation in our nation.” Nelson notes that after Virginia expanded voting restrictions in 1902, as part of a package that included poll taxes and literacy tests, a state senator said the new laws would “eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”

Marc Mauer, executive director of The Sentencing Project, argues that Clegg is attempting to establish a “character test” for voting, and notes that it makes no sense to think someone “convicted of stealing a car, for example, cannot be trusted to participate in decision-making about which of two candidates has a more reasonable position on the war in Afghanistan, publicly-funded abortions, or health insurance policy.”

Rachel Corey of the Massachusetts-based Emancipation Initiative said that in 2016, for example, many incarcerated people voiced concern about local ballot initiatives on charter schools: “They have children and grandchildren, nieces and nephews” that go to those schools. The right to vote while incarcerated, she argued, helps to maintain a connection between the incarcerated person and their family and community.

Ronald Pierce, an intern with the New Jersey Institute of Social Justice who spent over 30 years in New Jersey state prisons, said that the right to vote is “not only a right to participate, but an obligation to the society.” Ronald Simpson-Bey of JustLeadership USA said voting strengthens social and community ties. “It encourages [people] to become assets to their communities instead of liabilities because it encourages legally responsible involvement and behavior in a civil society.” [Emmett Sanders / People’s Policy Project]

In his book “Prison and the American Imagination,” scholar Caleb Smith situates disenfranchisement within the history of “civil death,” an ancient ritual of exclusion, which today persists as a legal fiction that strips people of certain civil rights. The idea of civil death, in medieval England, was that “he who breaks the law has gone to war with the community; the community goes to war with him.” In colonial times, the death penalty, seen as barbaric and violative of the social contract, fell out of favor. Civil death began to take its place, an acknowledgement that a “natural person” was a “living thing that the state could bind and incapacitate but could not kill.” [Caleb Smith / Prison and the American Imagination]

Civil death seems to be a compromise between conflicting impulses: Prisoners are both dead and alive (“a ghost,” as sociologist Erving Goffman has put it); they are members of society but exiled; they are seen as human, but not entirely (“coarse beings,” Smith writes). Smith notes that the “penitentiary was perfected between 1820 and the Civil War, alongside the plantation and the reservation, two other great institutions for the containment of figures without rights, condemned to a shadowy life at the margins of the human community.” In the U.S., civil death statutes stripped people not only of their right to vote but also to make contracts; people lost their property, and in some states, their spouses were considered widows, free to remarry. “Thus the incarcerated convict retained his ‘natural life’––his heart beats on, he labors, and he consumes––but he has lost the higher, more abstract, civil life that made him fully human in the eyes of the law.” [Caleb Smith / Prison and the American Imagination]

Even though we have abandoned “many of the graver penalties associated with the tradition,” writes Jack Shafer for Politico, civil death lives on. In many states, besides losing the right to vote, a formerly incarcerated person cannot run for elected office, serve on a jury, become a police officer or join the military, or get a government license to work in certain professions.

States are gradually easing up on such restrictions, and as Sanders pointed out at the town hall, Vermont has never deprived people of the right to vote based on a criminal conviction. “In my state, what we do is separate. You’re paying a price, you committed a crime, you’re in jail,” he said. “But you’re still living in American society and you have a right to vote.”

People in prisons are still members of society. They have families and friends and communities. They work. They study. The vast majority will come home. The sooner we drop the legal fiction that they are dead, or ghosts, the sooner we can give them the opportunity to be the best neighbors and community members possible.

“The permanent disenfranchisement of ex offenders based on the metaphor of keeping the ballot box pure relies on an analogy to a permanent tainted character,” writes law professor Ekow Yankah in a 2015 article. “Likewise, the countless collateral sanctions—from being denied government support to continue education or even necessary food—that deny reentry into civic life reveal the same view of permanently stained persons who no longer deserve civil regard.” This, he writes, conflicts with the dominant view of criminal punishment which “is one of a criminal offender who violates the rights of an innocent person” and thus is believed to deserve punishment. “This view divorces justification for punishment from its future consequences, i.e. whether punishment ultimately reduces future crime rates.” [Ekow Yankah / Criminal Law and Philosophy]

Yankah argues instead for “grounding our punishment practices in an Aristotelian republicanism,” by “insisting that the core of criminal responsibility lies in the offender’s attack on the civic bonds that make living in a society as equals possible.” This system would be undergirded by the idea of mutual responsibility and “understand that hostility, as expressed in the offender’s ‘civic character,’ matters to us all while still seeing our obligations to reintegrate both victim and offender into our shared civic project.” Yankah focuses on Aristotle’s notion that “human beings are first and foremost social animals,” so that “committing a crime not only attacks the victim but also represents an attack on the values that make living together possible.” This Aristotelian vision “is as concerned with the obligations owed to citizens by their civic community as the duties owed by citizen to their polity” and a criminal system fashioned on that basis would force us to take a closer look at shortcomings in our current system, including “lack of rehabilitative support given to victims of crime and the lack of restorative steps offered to offenders.” [Ekow Yankah / Criminal Law and Philosophy]

As Chief Justice Earl Warren wrote for the majority in Trop v. Dulles, a 1958 case dealing with the rights of a military deserter, “Citizenship is not a right that expires upon misbehavior.”

Thanks for reading. We’ll see you tomorrow.

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