For the first couple of months of my incarceration, I was facing the death penalty. Before my arraignment, my attorney informed me of that fact, but reassured me that the then-Manhattan County district attorney, Robert Morgenthau, was against the death penalty. So, at worst, I would get life without parole.
Thankfully, neither occurred, which is why I can write this column today as a free(ish) man. But those moments of having my name associated with the death penalty were surreal — like an out of body experience. My lawyer was speaking to me, but I couldn’t make sense of the fact that it was actually me that he was speaking to and about.
Even without the ultimate penalty, though, incarceration in America is still a civil death. It deprives individuals convicted of certain offenses of many of their legal rights. And one of its most pernicious effects is felony disenfranchisement.
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During my 10 years in the penitentiary and five years on post-release supervision (a.k.a. parole), I was disenfranchised by the state of New York. For 15 years, I was civically dead for a crime that I committed at 19 years old, as part of a penalty that dates back centuries.
Forty-eight of the 50 U.S. states prevent full voting rights to some segment of the incarcerated and formerly incarcerated populations. Overall, more than 6 million people are disenfranchised due to a felony conviction, with Florida alone counting for more than one quarter of that total. One in 13 black adults is disenfranchised due to a criminal conviction.
Recently, Florida voters approved an initiative that would have enfranchised that state’s voters with felonies, who were previously permanently barred from voting. The legislature then partially overturned the initiative, requiring that those who had regained the right to vote first pay all of their back court fees — a barrier that will continue to deny the ballot to many.
But that’s not the story everywhere. Maine, Vermont, and Puerto Rico are the only places in the U.S. where there are no restrictions on voting for people with felonies, inside or out of prison. Massachusetts was a part of this exclusive club until 2000, as was Utah until 1998.
But, why? Quite simply, those states never implemented laws that would deny incarcerated people that right. (Though in Vermont at least, there have been challenges to the state’s stance on suffrage for incarcerated persons, which has been in place since the 1790s.) Leaders from both states, regardless of their political ideology, offer similar reasoning. Mike Donohue, a spokesman for the Vermont Republican Party said, “The last thing we want to do is start putting up insurmountable barriers to participation in civic life because someone may have been convicted of a crime.” In Maine, meanwhile, former state prison warden Randall A. Liberty believes that, “it’s a basic American right to be able to vote for your elected officials … regardless of their offense.” Liberty’s beliefs, in particular, are supported by former Chief Justice Earl Warren, who wrote in a 1958 majority opinion that “Citizenship is not a right that expires upon misbehavior.”
But citizenship is also racialized in America, making this simple-sounding tale about civic responsibility and citizenship more complicated. Vermont is 96 percent white and Maine is 95 percent white, ranking them first and second as the whitest states in the country.
According to Ashley Messier of ALCU Vermont’s Smart Justice, who served time in a Vermont prison, “it’s easy for a 96 percent white state to allow its residents to vote.” Civil death is less acceptable when the subject of the penalty is white.
That assertion should not surprise us, because since the incorporation of this country, the United States government had explicitly denied suffrage to anyone not white and male, whether through explicit law or reigns of terror. Only since the passing of the 19th Amendment to the U.S. Constitution in 1920 and the civil rights movement that took place just 50 years ago has there been concerted action to reverse electoral oppression in America. That fight continues today, with the passing of Amendment 4 in Florida, and efforts such as the bill recently introduced in Washington, D.C., which would allow incarcerated people to vote.
In the case of Puerto Rico, the constitution there guarantees the right to vote for every person over 18 years of age (though, to be clear, they have no meaningful representation in the U.S. Congress). Interestingly, Puerto Rico is also significantly racially homogenous, with more than 80 percent of its population identifying as white, though mostly of Spanish origin.
Suffrage for incarcerated populations is a moral imperative. Many other countries allow for incarcerated people to vote, and the 48 states that currently deny that right should follow suit.
As a formerly incarcerated person, I can attest to caring deeply about education, safety, health care, and immigration while I was serving my time. A prison sentence does not disqualify you from caring about the community in which you once lived. Prison should not equate to a relinquishing of the civic right and duty to inform the policies that will impact your daughter, son, or elderly parents.
In an article I wrote for The Nation, I documented the concerns of incarcerated men during the 2008 presidential election. One of the men wanted then president-elect Barack Obama to pay attention to the “shrinking middle class and health care.” Another wanted him to pay attention to “the state of the economy and implement a sound economic plan that will take the country of its current recession.”
The inconvenient truth, though, is that it is easier for the American public to ignore policies that have disproportionately negative impacts on people of color.
The general public probably thinks it’s a no-brainer that people in prison cannot vote, if they’ve ever thought about the issue at all. In part, that’s due to the tough on crime rhetoric that has permeated American politics since the days of Richard Nixon. This conditioning is racist in conceptualization and practice.
But it is time to challenge that conditioning. Theoretically, people go to prison as punishment, not to be punished. Civil death is contrary to the United Nations’ Universal Declaration of Human Rights, which states: “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.”
The 2.2 million people in America’s jails and prisons were not sentenced to civil death and should be allowed to inform the communities in which their loved ones still live. Neither race nor the narrative that people in prison do not deserve the right to exert their full humanity should be the factors that prevent their enfranchisement.