By Christopher Poulos* – from Harvard Law & Policy Review
On election night of 2008, I was incarcerated at a federal prison in Lewisburg, Pennsylvania. I was the only white prisoner in the TV room of my unit as we watched the election results stream in. It became evident that Senator Barack Obama would become our nation’s first black president. African American men filled the room, one of whom had marched with Dr. King during the Civil Rights Movement. Tears streamed down his face as we collectively witnessed this pivotal moment in U.S. history. That night was one of the most powerful experiences of my life.
The next day, my ballot made it through the mailroom screening process, and prison staff delivered it to me. Although incarcerated in Pennsylvania, I was a Maine resident, and Maine is one of two states where people can vote while in prison. This is not due to recent reforms; it is because Maine and Vermont never implemented criminal conviction disenfranchisement laws. I missed my opportunity to vote, but even knowing that I could vote made me feel as though I was still part of my community and it gave me hope for my future. I felt that although my time in prison physically separated me from society, I still mattered. This seed of hope increased my interest in positive programs and people and decreased my interest in negative activities that could make my prison time worse, or even extend it. It is important to first recognize that the restoration of voting rights for people convicted of crimes will not by itself dismantle systemic racism or mass incarceration. Nonetheless, it is a necessary and just step in that direction.
Voting rights for people with criminal convictions is in the national spotlight due to the recent major victory in Florida, the current legislative threat against it, and the questions posed during the Democratic Presidential Candidate Town Halls. Disenfranchisement based on criminal convictions is a harmful policy that began with the founding of the United States and expanded following the Civil War in the form of racist Jim Crow laws designed to keep newly freed black people from voting. The danger and reality of laws targeting and disparately impacting particular groups, then taking their vote away, remains incredibly troubling and unacceptable. What safeguard guarantees there will be no disparate enforcement against people ideologically opposite those in power? What safeguard ensures no disparate impact on a protected class? There are none. It has been happening for generations and accelerated intentionally at the end of the Civil War. African Americans of voting age are now over four times more likely to lose their voting rights than the rest of the adult population, with one of every 13 black adults prohibited from voting nationally.
Stripping a person of the right to vote—the most fundamental means of civic engagement—also further separates and alienates people from society, which is counterproductive to institutional safety and successful reentry. At least 95% of people incarcerated in state prisons will reenter society. Should the time people spend incarcerated consist of further alienation from society or preparation for reentry and law-abiding lives? The latter will be more effective if we hope to reduce crime and recidivism while strengthening families and communities. Civic engagement is one key element to successful societal reintegration.
There is also no valid public interest in disenfranchisement based on criminal convictions. First, there is zero deterrent effect. I have personally interacted with hundreds, and perhaps thousands, of people who have broken the law, many of whom have also served jail and prison terms. I have yet to hear anything along the lines of, “Well, I had planned to rob that bank until I found out that I may later lose my right to vote.” Second, people who have been convicted of crimes still deserve a say in the political process. To argue otherwise is to assume both that people who do not have criminal convictions have not broken laws and that the legal system is infallible in its convictions. Disenfranchisement based on criminal conviction is similar to establishing a moral character test for voting, which is a very slippery slope and a direct threat to our democracy. Third, ending disenfranchisement will boost institutional and public safety. It is axiomatic that when people are treated as full citizens, the impulse to lash out against society is lessened. Civic engagement has been found to lower recidivism. Finally, prison gerrymandering, the practice of counting people in local censuses where they are incarcerated rather than where they are from, is inherently unfair. This practice allows jurisdictions to misrepresent the number of eligible voters and boost the area’s representation in government, forming yet another reason to end conviction-based disenfranchisement.
Here in Washington state specifically, Governor Jay Inslee is expected to sign a bill led by Senators Jeannie Darneille and Sam Hunt that addresses prison gerrymandering. The governor already signed two bills led by Senator Manka Dhingra related to civic engagement and criminal legal system involvement. One bill clarifies the language that those who have felony convictions are eligible to participate in jury duty as long as they are no longer in Department of Corrections (DOC) custody. The other bill requires the DOC to notify incarcerated individuals, prior to discharge, of the process for restoring their voting rights so that they can fully participate in our democracy. Hopefully, this second bill will help us avoid further abhorrent injustices like what happened to Crystal Mason in Texas. Ms. Mason was sentenced to five years in prison for voting while on probation. Yes, you read that correctly. Ms. Mason maintains that she did not know she was doing anything wrong because she didn’t understand that she was not allowed to vote. In fact, she was given a provisional ballot by an election official that was never counted.
Two other bills, led by Senator Patty Kuderer and Representative Laurie Dolan, would have taken these efforts a strong step further by restoring the right to vote for people who have been released from prison but remain on community supervision with the DOC. In Washington state, we have lifetime community supervision, and everyone on community supervision is prohibited from voting. A person could be out of prison for 20 years and yet would still be barred from exercising their most sacred and fundamental act of civic engagement. Democrats control both chambers of the legislature, and Democrats sponsored both of these bills. However, neither bill passed, and legislators will need to reintroduce the bill during next year’s legislative session. Some legislators were concerned that expanding voting rights may create the perception that they cared more about people convicted of crimes than the victims of crimes. But the punishment intended by a prison sentence is the time in prison. Removing other fundamental rights without any good reason is counterproductive to successful reentry.
Disenfranchisement should not be part of a criminal conviction, and a strong start would be universally restoring voting rights for everyone released from prison.
* Attorney Christopher Poulos serves as Executive Director of the Washington Statewide Reentry Council and adjunct professor of Political Science at Seattle Central College. During law school, he was President of the University of Maine School of Law chapter of the American Constitution Society and served at both the White House Office of National Drug Control Policy and The Sentencing Project. Poulos has also served as an advisor to United States Senator Angus King (I-Maine), adjunct professor of Criminal Justice at the University of North Texas, and President of the Board of Directors for the Civil Survival Project.