Lock ‘em up – without votes?

There are a great many issues on which Americans are deeply divided, but one that isn’t talked about enough is punishment for crimes. This has roared into the news lately with proposals to allow convicted felons to vote, and the resulting discussion, such as it’s been, has been a lot of noise without much careful thought or reasoned argument. Pretty much like all political issues in the USA, in other words.

Sen. Bernie Sanders kicked off the talk saying that convicted felons, even terrorists, should be able to vote. This was a logical position for him to take, given that Vermont is one of the two states in which they can vote: “Once you start chipping away and you say, 'Well, that guy committed a terrible crime, not going to let him vote. Well, that person did that. Not going to let that person vote,' you're running down a slippery slope."

Mayor Pete Buttigieg took a different position, consistent with existing law in many states, namely, that felons don’t get a vote when in prison, but their right to vote is restored once they’re released: “As you know, some states and communities do it, some don't. I think we'd be a better country if everybody did it.” He also pointed out why Republicans fight against allowing felons who have completed their sentences to vote: “Frankly, I think the motivations for preventing that kind of reenfranchisement, in some cases, have to do with one side of the aisle noticing that they politically benefit from that. And that's got some racial layers too.”

Among other Democrats, Sen. Kamala Harris also supported the status quo as Mayor Pete does, but dodged the question of whether prisoners serving time should be able to vote: “I think we should have that conversation.” Sen. Elizabeth Warren also supports voting rights for former convicts, and sees guaranteeing their rights as part of a larger effort to protect voting rights. She also said, much like Sen. Harris: “While they’re incarcerated, I think that’s something we can have more conversation about.”

Former US Rep Beto O’Rourke said that he supports in-prison voting rights for “non-violent” prisoners: “When you look at the population in prisons today, it is disproportionately comprised of people of color,” he said. “Far too many are there for nonviolent drug crimes. I want to make sure that time spent behind bars does not entail a stripping of your civic and constitutional rights.” He added, “For violent criminals, it’s much harder for me to reach that conclusion. I feel that, at that point, you have broken a bond and a compact with your fellow Americans, and there has to be a consequence in civil life to that as well.”

There’s been a concurrent push from some on the Left to restore voting rights to people serving time in prison, and the Tweet above (part of a longer thread on Twitter), which was turned into a meme, is an example of that. When I saw it, I didn’t find the argument persuasive.

The first problem with the Tweet is that it could be overstating the case, though I haven't checked the locations of ALL prisons, obviously. In the Twitter thread, he cited the case of Angola prison in Louisiana, which at 6,300 prisoners is the biggest maximum-security prison in the country. He acknowledges that’s too small to influence a Congressional election, however, the area where it’s located, West Feliciana Parish, had a population of a mere 15,625 in the 2010 census. That means that FORTY PERCENT of the population is prisoners, yet they can’t vote (the census counts prisoners in the place where a prison is located, just as it counts everyone where they’re located when the census is taken). That’s appalling and disgusting—but is it a case of special pleading?

The underlying issue here is that the US prison population is disproportionate: Black people make up only 13% of the population, but 40% of the prison population. White people, on the other hand, make up 64% of the US population but only 39% of the prison population. We know that black prisoners are far more likely to get a custodial sentence than a white person who has committed the same crime, and that their sentence is likely to be longer and/or harsher than a white person sentenced to prison. It’s impossible to conclude anything other than the fact that the US criminal justice system, from police through to prosecutors, has, shall we say, a racial bias, which results in a disproportionate number of black people being incarcerated.

All of which is an argument for reform of the criminal justice system, which Democrats at all levels of government have argued for. But, is it an argument to let prisoners vote while in prison?

Rational people (which leaves out many, or most, Republican politicians, apparently…) believe that prisoners ought to be able to vote once their prison sentence is completed. Believing that a person should lose nearly all their rights when serving their prison sentence isn’t unique, nor is it inherently racist—though it can be, of course. More often than not, it’s about people wanting to punish crimes, and the issue of how the person came to become a prisoner ought to be a separate matter.

So it’s fair, as Harris and Warren have said, that we should have a discussion about the subject. Mayor Pete is right to point out the racial factor involved here. Sanders says all prisoners should vote, and maybe they should, but maybe we ought to reach consensus on that first.

O’Rourke’s position looks, at face value, like an odd distinction. If someone loses their vote because they're imprisoned for a crime, what difference does it make if the crime was violent or not? Certainly, that was my own first reaction. However, just as black people are far more likely to be imprisoned than white people, so, too, are they far more likely to be imprisoned for non-violent offences, like possession of small amounts of drugs, for example, or even driving offences. If there are any prisoners who could be thought to deserve to vote while in prison, it would be non-violent prisoners. Perhaps we should have a discussion about that, too, even as we talk about whether any prisoners should be able to vote.

This is an issue here in New Zealand, too. In 2010, the previous National Party-led government enacted the Electoral (Disqualification of Sentenced Prisoners) Amendment Act, which took away the right to vote for all serving prisoners. Before then, only some prisoners were denied the right to vote: Those serving life sentences, preventive detention (which is, as the Department of Corrections puts it, is “An indeterminate prison sentence; prisoners may be released on parole but remain managed by Corrections for the rest of their life and can be recalled to prison at any time), or other jail terms of three years or more. In December of last year, the New Zealand Supreme Court ruled that the ban was lawful. [See also "Prisoner voting" from the NZ Department of Corrections.]

My own feeling about this is evolving. Right now, I think that all prisoners should lose the right to vote while in prison, and it should be automatically restored upon their release. However, in many countries, including both the USA and New Zealand, among others, incarceration is disproportionately directed at people who aren’t white. But that’s an issue on its own, and not, by itself, a reason to let all prisoners vote. Or, maybe it should be? Maybe it could help restore justice to the criminal justice system by letting the victims of that system have a say. I don’t yet know what I think, but I’m listening. That’s the first thing needed to have a discussion, after all. If only we could do that on all political issues.