As 2020 US Presidential election campaigning is in full swing, heated debates on contentious issues have taken the centre stage. Among these is the issue of voting rights for incarcerated citizens during their prison terms. A staunch supporter of voting rights for prisoners is Vermont Senator Bernie Sanders. In a CNN town hall on April 22, Bernie supported the right to vote to include even the Boston Marathon bomber Dzhokhar Tsarnaev, who was sentenced to death in July 2015. Sanders believes that the commission of any crime or horrific act should not debar a citizen from his right to vote. To quote him, “I think the right to vote is inherent to our democracy. Yes, even for terrible people because once you start chipping away … you’re running down a slippery slope,” Sanders said, attracting a strong rebuttal from the Republicans.
More than 6.1 million people in the United States have lost their voting rights as a result of felony convictions. The United States is an outlier, compared to many nations across the world where the voting rights of prisoners are protected. Twenty-six European countries protect the voting rights of prisoners who are convicted for non-violent crimes such as drunk driving, possession of a small amount of marijuana or fleeing the police.
Eighteen countries grant this fundamental right even in case of murder convictions. When Britain imposed a blanket ban on voting in 2005, the European Court of Human Rights ruled this to be a grave violation of human rights. Canada, South Africa and Kenya also grant voting rights to their felons. During the Presidential elections in North Macedonia, ballots were brought from prisoner’s home voting district in thirteen prisons of the country. Ahead of the recent referendum, election officers initiated a program to renew expired voting documents of the incarcerated people. In Bosnia and Herzegovina, prisoners convicted for crimes unrelated to the Bosnian War have the right to vote. In Germany, Norway and Portugal, only those convicted for crimes that target the state or democratic order, like terrorism or political violence, are disenfranchised.
Vermont and Maine are the only two states that allow prisoners to vote in the United States. Twenty-six American states stripped this right away from former prisoners for a lifetime. Joining the bandwagon are Armenia and Chile, where prisoners lost their voting rights. In Belgium, prisoners with sentences longer than seven years are not allowed to vote. In India, prisoners and those under preventive detention lose their voting rights under Section 62(5) of The Representation of People Act.
A Reflection of Racism?
A socio-political dimension to the voting rights debate is the political representation of the black community in America, given the disproportionate incarceration of black people in the country. In the colonial era of America, the concept of “civil death” was prevalent. It was believed that some bad actions render a person ineffective in utilising his civil rights. A racial twist to the story came following the Jim Crow laws, enacted in the late 19th and early 20th century. Black Codes were enacted in the South following the Civil War to constrain rights of black people, criminalising disobedience and “disrespect to the employer”. The subjectivity left it to the discretion of the authorities and enforcement targeted and criminalised the black community.
Most blacks lived in the South and were effectively disenfranchised following the Jim Crow laws. Analysts believe that the 1912 Presidential election was steeply slanted against the interests of the Black Americans. The brunt of poll taxes and literacy requirements was borne by the poor and illiterate Americans (a large proportion belonged to the black community), while European Americans were exempted from meeting these requirements. Literacy testing clauses were consciously used to single out Black Americans in Virginia, Oklahoma and Florida.
President Barack Obama said at an NAACP convention in 2015, “African-Americans are more likely to be arrested. They are more likely to be sentenced to more time for the same crime.” There were 5.1 times more Black prisoners than white incarcerated in state prisons. According to Ashley Nellis, a senior research analyst with the Sentencing Project, the disparity between black and white felons was more than ten times in five states. New Jersey had the highest disparity, with twelve black people to one in its prison system. This was followed by Wisconsin, Iowa, Minnesota, and Vermont. Oklahoma had 2,625 black inmates per one hundred thousand residents, with only 7.7% of the population being black.
Given the sheer population of black felons, the disenfranchisement results in skewed participation of the community in the elections. This takes a toll on all aspects of the electoral process: from the inclusion of their demands in the agenda to allowing leaders from the community to run for positions. This hampers the socio-political empowerment of the community, an objective that has not been accomplished since the Civil Rights Movement.
Voting: A Fundamental Right
Fundamental rights, by definition, are not meant to expire on the commission of a crime. Other than for crimes related to terrorism and civil strife, depriving the citizen of his right to vote should be an exception and not a norm. Universal suffrage is meant to be universal.
The question at the heart of the debate is: What is the purpose of a prison? Is it meant to be a punishment which includes restriction of rights, or a place for repentance and rehabilitation? Prisons should be a place for reeducation and providing the inmates with skills and values to reintegrate with society upon their release. Giving them voting rights and making them realise the fundamental rights as well as duties is an important component of the reeducation drive.
The Silver Lining
In 2018, Florida voted for a constitutional amendment to end the policy of permanent disenfranchisement of felons. The supermajority voting for the motion helped to restore the voting rights of 1.5 million convicted felons. The District of Columbia and fifteen other states joined the bandwagon to end this draconian policy. Those on parole or probation were allowed to vote in New York. With such examples in the neighborhood, the process of rethinking about prisoner rights has begun in the other states as well. This would go a long way in achieving Martin Luther King’s vision of a racially just society.
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