Should incarcerated felons be allowed to vote?
Vermont Senator and Presidential Candidate Bernie Sanders set off a firestorm recently by stating an unequivocal, unconditional “yes.” Even the Boston Marathon bomber. Even rapists and murderers. Even “terrible people,” Sanders insisted, deserve to vote.
I know what my argument would have been when I was more idealistic. And that argument is this: People who are in prison have committed crimes against society and, in so doing, have violated an important social contract. Therefore, they do not deserve to vote until they have paid their debt to society.
I don’t believe this argument anymore, and I’ll be explaining why here. I’ll also say I’m less interested in the specific issue of voting than I am in the mismatch between what many Americans believe about how prison works and how prison really works.
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An important American myth is that we live in a meritocracy: That people succeed or fail solely on their own merits, and that the role of luck and the characteristics of birth have little to do with it.
Prior to Sanders’s statement and the ensuing conversation, I’d thought of this solely in terms of economic success and failure. Surely people who inherit vast wealth, like the Walton family, the Kardashians, or Paris Hilton, are destined to be financially comfortable their entire lives regardless of what they do, or how competent they personally are at business.
Even that aside, though, cultural systems devised to favor straight white able-bodied Christian men make it more difficult to succeed if you’re not one.
There’s two parts to this claim: The obvious one is that the people who aren’t in corporate boardrooms don’t deserve to be there. The other is that the people who are there all deserve it.
And this can be generalized even farther: That, in a meritocracy, everyone is exactly where they deserve to be, based solely on their own deeds.
Which brings us back to prison.
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In an ideal world, all people who are in prison have committed a crime against society and deserve to be there, and all people who are not in prison have not committed any such crime.
This is flawed on several levels. First of all, between two and ten percent of the prison population are not guilty of the crime they’re serving time for. John Grisham, author of legal thrillers and member of the Innocence Project, lists a variety of ways that an innocent person can wind up in jail: Police, prosecutorial, or judicial misconduct, faulty evidence, improper confession, and poor eyewitness testimony.
The common rebuttal is that, yes, but, you don’t get on the police’s radar without being in the wrong context in the first place. Maybe you didn’t commit the exact crime you were convicted of, but certainly you did something wrong, right?
Wrong.
Being in the “wrong context” can simply mean living in a certain neighborhood, or being a certain skin color. Philando Castile was shot dead because he was a black man who “looked like” a robbery suspect. Castile himself did nothing wrong.
The idea that everyone in prison did “something wrong” is ultimately classist and racist. It also shows a cynical view of criminal justice. If we’re supposedly taking away five years of someone’s life for committing a certain act, doesn’t it matter that they committed that certain act? Otherwise, we’re punishing them for being a less-than-perfect (in our biased view) member of society.
Still, even if as much as ten percent of people in prison did not do what they’ve been convicted of, more than ninety percent have. So the vast majority of prisoners are guilty. Surely they don’t deserve the vote, right?
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Brock Turner, a young white male college athlete, was caught in the process of committing rape. He received several months in jail. U.S. Coast Guard Lt. Christopher Hasson, a white man, was caught stockpiling guns, with a list of Democratic politicians he was intending to kill. He is an active risk, but he has been released pending trial and is apparently still on active duty.
Meanwhile, Crystal Mason, a black woman who voted despite her felony conviction, has been sentenced to five years in jail for voter fraud. And over and over, black people get harsher sentences than white people for similar crimes. Over repeated studies, the Federal government found that “Black male offenders continued to receive longer sentences than similarly situated White male offenders” in its own courtrooms.
Prosecution and conviction rates are classist and racist; incarceration terms are classist and racist. If we’re going to deny incarcerated felons the right to vote, then that denial will necessarily be classist and racist.
We could simply deny all felons, even after their release, the right to vote. But then that undermines our claimed notion that prison is how we have people repay their debt to society. I’m opposed to that just as I’m opposed to sex offender registries: If we’re deeming someone “safe” to return to society, that should come without lifelong conditions.
Besides which, denying all felons, even after their release, the right to vote only gets around the issue of disparate and inequitable sentencing. It doesn’t address the issue of disparate and inequitable convictions.
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Okay, then, how about the Boston marathon bomber? Surely there are people who are so far beyond redemption that they deserve to have their rights stripped?
In an ideal world, yes. We could reliably identify the people who are so far beyond societal redemption that we can deny them the vote without any sort of cultural bias coming into play.
As Sanders points out, that’s a slippery slope. We can come up with extreme examples, but where’s our line? The person who questioned Sanders wanted to include rapists as an excluded class, but rape laws vary from state to state, and we’re talking about federal elections. Why should the same act strip someone’s federal voting rights based on the state they were in when they committed it?
Even if we limited ourselves to “mass murderers,” the FBI definition of that is strictly quantity. Someone who, in the midst of a blind rage, happens to kill four people could be considered a mass murderer. Someone who, with total malice aforethought, happens to only kill three people is not.
So if we’re going to allow some incarcerated felons, but not all, to still function as members of society, we need to decide who. That’s not an easy decision. We could state that a life sentence is our standard, which is perhaps a reasonable choice, but that’s tricky because of false conviction issues.
This also continues to rely on only one branch of our myth of meritocracy: That the people in prison, or that the people with life sentences, deserve it. It ignores the other branch: That nobody else deserves it.
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Another concern I have with sex offender registries is that they create a false sense of security: Nobody in a half-mile radius is on The List, so everyone is safe. That’s nonsense. There are dangerous sex offenders walking the street right now. I know there are probably several within a few blocks of my home. They just haven’t gotten caught yet.
People with fair convictions aren’t the only people to commit felonies: They’re just the ones to have gotten caught with sufficient evidence (and bias) against them.
Somewhere between my idealistic, protected youth and my modern self, I went through a period of nuance. During that time, I would have argued for a graduated system in which only certain felonies warranted stripping the vote and other citizenship rights.
Indeed, that was my first impulse when I heard Sanders’s position: Maybe this person, but not that person.
There are times, though, when a graduated system is a way of hiding a slippery slope, and I have come to agree with Sanders. Appeals to extreme cases rely on emotions.
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On another level, too, there’s a psychological importance of not disenfranchising “terrible people”: Stripping people of their “member of society” status helps us to dehumanize them. That is another slippery slope at work here. Already, far too many of us see “convicted felon” as “less than” on a human scale.
When we kick them out of society, we run the risk of also kicking them out of humanity. Which, in turn, implies that their acts were not acts of humans. The Boston Marathon bomber was a human, just as Adolph Hitler was a human. Denying this means denying who we ourselves could become… which is why we want to do it, and why we shouldn’t.
Originally published on The Good Men Project.