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Democracy’s Punishment: Felon Disenfranchisement
The United States of America currently prohibits approximately 5 million people from voting under the auspices of felon disenfranchisement law. The U.S. is second only to Russia in terms of national imprisonment rates, and in the U.S., minorities are disproportionately represented in the prison population. The prison-industrial complex has been a topic of great concern to academics, activists, and human rights associations in the past decade, especially the growing emphasis on profit-seeking as opposed to sound criminal justice policies. As the prison system expands and changes into a private institution, it is becoming more complex to safeguard the rights of individual prisoners, raising various questions about democracy, punishment, and rehabilitation.
This paper focuses on the most fundamental democratic right: the right to vote. What does disenfranchisement mean for minorities? And what does our willingness to disenfranchise people mean about American democracy? Despite public opinion in favor of re-enfranchising ex-felons, legislation is slow to act. Even though the reasons for this are multifaceted, economics, race, and politics are the major players in this debate. Disenfranchisement is a tool by which discrimination is implemented in the U.S.; both disenfranchisement and the social structures that perpetuate discrimination must be challenged in order to make the United States a truly democratic country.
New York and the US: Prisons and Jails
Only two states in the U.S. (Maine and Vermont) do not strip felons of their voting rights, while at least 11 states permanently disenfranchise felons. In these states, no matter the magnitude of the crime or how long since the crime was committed, convicted felons permanently lose the right to vote. In rare instances and depending on the state, the ex-felon can appeal to the local court to be re-enfranchised. The remaining states vary on who can vote; some allow parolees to vote, others limit voting rights to those who have completed their maximum sentence or completed probation, some allow only those on probation to vote, and various other combinations of these limits. The State of New York falls in-between: people currently in prison or on parole may not vote although former felons (having completed their sentence) and those on probation may. People being detained in jails, those who have not yet been convicted or are awaiting trial, may vote, as opposed to people in prison who, categorically, have already been sentenced.
Minority Communities and Disenfranchisement
Felon disenfranchisement laws disproportionately affect ethnic minority communities on a national level. A higher rate of incarceration among the black and Latino populations leads directly to higher disenfranchisement rates. Nationwide, over 13 percent of black adult males are denied the right to vote, and black men make up 36 percent of the total disenfranchised population. In other words, although black people make up only 13.5 percent of the total U.S. population, more than one third of disenfranchised Americans are black. Sixteen percent of Latino men will spend time in prison in their lifetimes as opposed to 4.4 percent of white men; Latino men also constitute an unnaturally high percentage of the disenfranchised population. In the past several decades the number of females in the prison system has risen an astounding amount, also with disproportionately high numbers of black and Latina women. Although men are currently disenfranchised in larger numbers, if the female prison population continues to grow at this rate, the disparity between the sexes may wane in this respect.
Nationwide police profiling and over-sentencing of members of minority populations negatively influences communities that already live in poor conditions as a result of discriminatory legislation, such as districting and strict public housing laws. Prisoner disenfranchisement that occurs as a result of over-sentencing relieves politicians of constituent pressure to address the needs of this largely poor, uneducated, minority population. Cheryl Wertz of the New Immigrant Community Empowerment organization and the Unlock the Block coalition observed, “a collection of decisions are made by a collection of people without a very good idea of education and poverty.” This lack of awareness amongst politicians, combined with profiling and over-sentencing, allows inequity to make its way into the criminal justice system, whose policies act as powerful tools to keep minority communities in a perpetual state of poverty and disempowerment. Ron Hayduk, a Political Science professor at Borough of Manhattan Community College and former social worker, characterized the racial inequalities of disenfranchisement law in the following manner: "mass incarceration of minorities is definitely mean-spirited in content and effect," he said, though it is arguable whether mass incarceration is a “conscious” choice of policy makers. Whether decisions are made on the basis of “conscious” or “unconscious” discrimination, the effect is widespread and deeply confounds how American society thinks about race.
New York State versus New York City: Incarceration, Disenfranchisement and Electoral Districts.
One manner in which the discriminatory disenfranchisement policy manifests itself is exemplified in the case of prisons and electoral districts. On the census prisoners are counted among the population where they are imprisoned, not among their pre-incarceration hometown population. This factor has important consequences on electoral issues; as a result of the census rules prisoners increase the population of the small, predominantly white districts where the prisons are built. This is one of the most powerful tools to control electoral districts. It increases the voting power of upstate New York residents and, because the felons do not vote but are included in the districts’ population, fewer voters in upstate New York are able to elect candidates more easily than crowded districts in New York City.
Disenfranchisement is a strong political and electoral weapon in the competition between NYS and strongly democratic NYC, especially because approximately 80% of the black and Latino prisoners upstate come from 10 NYC neighborhoods (East Harlem, Washington Heights, Lower East Side, Hunts Point, Morrisania, Soundview, Central Brooklyn, East New York, Jamaica and St Albans). Republicans control the NY Senate whereas Democrats control the NY Assembly and the competition between the two for votes is strongly impacted by the “invisible” disenfranchised populations of upstate New York. Peter Wagner’s study, “Importing Constituents: Prisoners and political clout in New York”, shows that at least 7 senate districts in NYS exist directly because of prisoners. In the past, senators who may not have been elected if not for their hometown prison population have, in a vicious cycle, become the heads of committees that make crime and justice policies. It is not a coincidence that only one prison has been built in New York City since 1982 whereas 40 have been built in rural cities in upstate New York: the location of prisons is a crucial political tool.
Re-enfranchised ex-prisoners eventually return to their home cities and are not able to vote for or against the people who are in office thanks to their prison stay, and who control prison policy. They are the pawns in a game of political maneuvering. It is impossible to remove the political stakes attached to this debate. Glenn Martin of the Legal Action Center lamented: “We’ve done everything we can to show that this is not a partisan issue, this is an issue of democracy, but it’s been an uphill battle to show that to the Republicans.” The reality is that disenfranchisement is both a simple issue of democracy and a partisan issue, at least in effect if not philosophically. Additionally complicating the issue are not only the high electoral stakes of disenfranchisement, but financial issues.
Why Do Poor Black Urban Communities Give Money to White Rural Communities?
Governments (local and national), agencies, and organizations use the census to determine the needs of communities and gauge the necessity for, and the amount of, subsidization or targeted policies. Prisoners corrupt this process. They do not earn money, lowering the average income of the community, and do not benefit from policies and structures implemented due to subsidized funds. More importantly, prisoners do not appear in the census of their home communities that are in dire need of these funds. Money that would be most beneficially used in New York City is thereby channeled to upstate New York. In addition to this rural-urban competition there exists rural-rural competition. Because rural towns that house a prison have political and financial advantages over those that don’t, the balance between rural towns is disrupted. This particular inequality in the process of dispensing funds obviates how the criteria chosen by policy makers to design social programs—in this case census data—impacts the fairness and equality of the outcome.
How Does Disenfranchisement Undermine Democracy and Equality?
As we have seen, the “one person, one vote” ideal is at worst a lie, and at best, a selective ideal: there exists in the United States institutional and legal discrimination against prisoners and especially minorities. Enfranchisement and the justice system are very powerful actors in this discrimination.
When a felon is released from prison, he or she recovers all former social duties but not his or her rights. Can a state that chooses to limit the political power of some, but not all, of its inhabitants be qualified as a democracy? And, is a state with such an unfair justice system and such discriminatory policies qualified as a democracy? Can a state that emphasizes punishment rather than making rehabilitation a necessary and mandatory step after a prison sentence be trusted with teaching democratic principles elsewhere? The answer is “no”; if democracy is based on the premise that all its’ citizens should have an equal voice in government for the pursuit of their rights, security, and happiness, disenfranchisement policy disallows the U.S. use of this nomenclature.
But even if we believe that felons deserve to be disenfranchised, and that this disenfranchisement does not conflict with democratic ideals, we must consider the human rights consequences of these policies. . And since disenfranchisement targets blacks and Latinos, it is a problem of discrimination. It is shameful that the U.S. maintains such a discriminatory and non-democratic system. Disenfranchisement is a very deep American social issue and must be understood within the framework of freedom and rights.
When a person is in prison his entire community is punished. Children, families, and neighbors… they are all condemned in one way or another when the felon is condemned. In addition to his community suffering, the felon is subject to “invisible” punishments in addition to his prison sentence. A “modern day version of civil death” occurs as a litany of devastating consequences follows the prisoner and his family. He won’t be eligible anymore for TANF and food stamps (in New York, you still can apply if you are on treatment, but it’s rare), he won’t be sure to have a place to live because Public Housing adopted a “one strike, you’re out” policy for drug convictions, and he won’t be able to get a job that requires a license, such as real estate, plumbing, barbering, notary public, etc…the list of “invisible” punishments goes on and on. Poverty and undue restraints upon an individual’s freedom are certainly democratic issues that affect the entire society. They must be addressed in exactly those terms: equality as a democratic ideal.
Looking to the Future
Re-enfranchising ex-felons is an important part of helping them reintegrate into society and cultivate a responsible civic identity. In many states all legal rights are restored to ex-felons but the right to vote is permanently withheld. The man or woman is given civic responsibility, such as paying taxes, but has no say on governance. Allowing people to vote is an integral part of a complete reintegration process, a process that when successful reduces recidivism rates. Various groups based in New York City have taken this message to heart and work to improve state and local legislation on disenfranchisement. Universally, their motto for affecting change is “educate, educate, educate.” A great lament among the directors of these organizations is the lack of correct information about disenfranchisement law that felons, criminal justice workers, the public, lawyers, and policy makers possess. In the past few years efforts have been made to educate these groups with easily digestible and succinct pamphlets, papers, op-eds and press releases, and when necessary, use litigation to force institutions to provide accurate information to felons, ex-felons, and their families. These groups remain hopeful, and education efforts have proven at least partially successful: “We’re going to see forward movement because people are more and more aware,” Mr. Hayduk said, before stressing the importance of making the history of disenfranchisement law available to policy makers who often believe that this is a “modern” issue and fail to see the historical significance of this long-standing debate. Glenn Martin of the Legal Action Center hopes that the current use of “freedom speech” by the current administration on the international level will eventually come back home and invigorate our own democratic process and as a consequence, “this issue will begin to resonate more and more with the public.” Cheryl Wertz explained that in the U.S. “we have a history of continuing to add to our democracy,” and “we have seen over time a history of enfranchisement.”
There is hope that disenfranchisement laws will eventually become less stringent; indeed, there seems to be evidence that this will slowly occur. Nebraska and Iowa recently instated automatic restoration of voting rights after a completed sentence and many states are being forced, thanks to re-enfranchisement organizations, to look at their own laws in a more critical light. The greater worry is that the social systems, of which disenfranchisement is one part, that perpetuate poverty, lack of education, and mass incarceration will continue to thrive despite a decrease of disenfranchisement law in the U.S. It is necessary that institutions like the growing prison-industrial complex that benefit from incarcerating people and keeping them silent be questioned. True democracy cannot exist until we are all given the same opportunities to thrive and participate in the United States, and this will not be possible if the threat of incarceration disproportionately hangs over the head of any American population.
“Voting Rights for Prisoners and Ex-Prisoners in New York,” Community Service Society, Jan 15, 2003.
“Prisoners and the Right to Vote,” Emily Jane Goodman, May, 2006.
“Imprisoned in New York,” Andrew Beveridge, February, 2004.
“About Felon Re-Enfranchisement” Demos: A Network for Ideas and Action, www.demos.org, Aug 2nd, 2006.
Kevin Krajick, “Why Can’t Ex-Felons Vote,” The Washington Post, August 18, 2004, p A19.
Sara Giboney, “Challenge to Felon Voting Ban Fails, But Fight Goes On,” Inter Press Service, June 28, 2004
“The Sentencing Project”, Human Rights Watch, 1998
“The Voting Rights of People with criminal convictions in New York”, Brennan Center for Justice, www.brennancenter.org
Rebecca Perl, “The last Disenfranchised Class”, The Nation, 11/24/2003
Eric Lotke, Peter Wagner, “Prisoners of The Census: Electoral and Financial Consequences of Counting Prisoners Where They Go, Not Where They Come From”, PACE Law Review, 02/16/05
Zachary R. Dowdy, “Crime and Punishment, How the U.S Prison System Makes Minority Communities Pay”, The New Crisis Magazine, July/August 2002
Brent Staples, “Why Some Politicians Need Their Prisons Stay Full”, 12/27/2004, New York Times
“Prisoners of The Census”, “Gerrymandering and relying on the miscount of prisoners combine to violate the U.S Constitution in NY”, www.prisonersofthecensus.org
-Cheryl Wertz: Director of Government Access at New Immigrant Community Empowerment (NICE).
-Ron Hayduk: Political Science Professor at the Borough of Manhattan Community College of the City University of New York (CUNY). Co-founder of the immigrant voting project.
-Glenn Martin: Co-director of the Legal Action Center’s National HIRE Network.
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