CRIMINAL JUSTICE ISSUES
Felons Right or Not Right to Vote
MAY 20, 2019
EDWINMTZ

[edwin1324m.wordpress.com]

The Right or No Right to Vote

“Jarvious cannot vote. Like his father, grandfather, great-grandfather, and great-great-grandfather, he has been denied the right to participate in our electoral democracy. Cotton’s family tree tells the story of several generations of black men who were born in the United States but who were denied the most basic freedom that democracy promises-the freedom to vote for those who will make the rules and laws that govern one’s life. Cotton’s great-great grandfather could not vote as slave. His great-grandfather was beaten to death by Ku Klux Klan for attempting to vote. His grandfather was prevented from voting by Klan intimidation. His father was barred from voting by poll taxes and literacy test. Today, Jarvious Cotton cannot vote because he, like many black men in The United States, has been labeled a felon and is currently on parole”.

Excerpted from The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander (2012)

With this narrowed history, Michelle Alexander starts the introduction to her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Through the following pages the author is drawing with a masterly rendition the premise over how “the arguments and rationalizations… in support of racial exclusion and discrimination in its various forms have changed and evolved” (Alexander, 2010). There the author is exposing the different stages of sociopolitical narratives in which the racial segregation evolves “into a new racial caste system”. Traveling from the times after emancipation, the Reconstruction Era (1863-1877) through the Civil Rights Movement (1954-1968), and ending with the War on Drugs with the consequent mass incarceration it’s demonstrated the evolution of the sociopolitical discourse in the United States. The final outcome after these mass incarceration is observed in the disproportionate rate of blacks, Hispanics, and ggenerally, the poor caste population incarcerated. This is what the author is identifying as the new Jim Crow in which the black and Hispanic populations has been disenfranchised from their civil rights, especially the right to vote.

Recently, the U. S. Senator from Vermont, Bernie Sanders, in his opening campaign for President of United States caused a commotion because his pronounciation in favor to restore the rights to vote for the incarcerated population. His statement was expected because his State of Vermont and Maine the two States of the Union where Inmates are allowed to vote from prison. With the people agreement or not, his statement is opening the discussion about whether the inmates can vote while in prison or if their right to vote could be restored after finishing the sentence and the debt with the society is fairly paid. The discussion is going further if is considered the use of incarceration as a mode of disenfranchisement affecting a “low caste” of society. But, it should be considered a systemic New Jim Crow?

The history of criminals and debtors deprived of citizens rights is contemplated from the beginning of the existence of human being. The first criminal punished and depribed of his rights was narrated in the biblical story of Cain and Abel. Punished and labeled to be recognized everywhere he was going. Since then a different kind of punishments have been drafted by law, from servitude or slavery for debtors, dismemberment for thieves and rapists, to exile for unwanted, but all of them deprived of their rights.

Laurence Freedman in his book “Crime and Punishment in America History”, is narrowing the evolution of the criminal justice system by highlighting the facts on influences of Christian faith and beliefs in the legal codes. Therefore, “The courts acted, in a way, as secular arms of the churches, which also punished these offenses, through reprimand, denial of privileges, and, in extreme cases, excommunication” (Freedman, 1930). The penitentiary system begins as a new way of reform to the criminal justice system in the middle of the nineteenth century “to segregate people who committed crimes, and keep them behind bars” (et al). Banned from the society were deprived to participate of the activities and benefits of society and from the free community.

The term “penitentiary” have the roots in the ecclesiastical believes that a perverted man and those deviated from the social life will need to paid his “penitence” in the search of forgiveness and to be re-inserted back to the normal life in the community (rehabilitation). This conception still in effect with important changes added during the 20th century. Changes in the search for a more humane conditions in prisons, but with the same principles of correction and/or rehabilitation. However, never in the history of fights for criminal justice reform had been the intention to recognizing the citizens rights for the inmates while in prison unto l this new wave of liberal thinkers.

According to recent data froto the Bureau of Justice Statistics, a significant decline in the number of black prisoners has steadily narrowed the gap over the past decade in comparison with white population incarcerated.

[bop.gov]
[pewresearch.org]

The Justice Collaborative is a project of Tides Advocacy that is trying to push for the reform of our criminal justice system, especially addressing the civil rights to vote for inmates or felons. Their base of thinking is lead by the fact that the elections of 2016 “the presidential election was won by 79,316 votes” while 6.1 million of American citizens were not eligible to vote because of their felony preconditions. Following the reasoning behind the ”New Jim Crow theory” stated by Michelle Alexander in her book, they also believe that ”the practice of disenfranchisement is rooted in Jim Crow era. However the disfranchisement of inmates from their civil rights, as was stated above, is as old as the history of incarceration itself. Moreover the continued and modified segregation is not only found in the imprisonments itself but in the populist discourse in the name of ”social justice“.

The political discourse itself is establishing the labeling and segregation of communities by skin color and social classes. There we hear about special programs for “disadvantaged communities”, or housing for low-income people, especial population, etc. However, those communities are not localized in the middle of wealthy people communities, but separated in the “hoods”, in the “rental communities”. People that can’t get access to a mortgage, or employment because of their “disadvantaged conditions”, forced to live in dependency for the rest of their lives. “Disadvantaged conditions” that are going from unemployment, low income, and a limited access to a good education addressing the unacknowledge of their fundamental rights. Therefore, these limitations and social inequality are setting the environment for criminal activities within these communities. Moreover, the political identity is worsening the already segregated society with the separate political identity by ethnicity, race, genders, sexual orientation, just to name a few. This social segregation is the real New Jim Crow, in which everybody is socially ”separated but equal”.

The obvious outcome of that social engineered segregation is the disproportionate incarceration rate related to these population; blacks, hispanics, and whites poor. Disenfranchised? Yes! However, the fundament of our country is an organized government pursuing the freedom and happiness of their citizens in a civilized and organized society. Therefore, incarceration is institutionalized to isolate those vice that is affecting the well-being of our communities and public safety, independently of the social caste. The real causes for the mass incarceration should be another subject for discussion separately from the current discussion over the right to vote.

However, there are an obvious rights that incarcerated people can’t lose:
The right to humane facilities and conditions
The right to be free from sexual crimes
The right to be free from racial segregation
The right to express condition complaints
The right to assert their rights under Americans with Disabilities Act
The right to medical care and attention as needed
The right to appropriate mental health care
The right to a hearing if they are to be moved to a mental health facility

Under the Due Process Clause, prisoners are entitled to be free of unauthorized and intentional deprivation of their personal property by Correctional Officers. Otherwise, inmates don’t have reasonable expectations of privacy in their prison cells and aren’t protected from “shakedowns” or searches. Therefore, prisoners rights are limited to those acts related to the First Amendment. Their lost of citizens rights is an expected outcome because the violations of the social law and order.

Now the question is when the punishment is ended and if the civil rights would be restored after the sentence is ending. But why the insisting discourse over the voting rights? Is there a genuine interest for the people rights or just another partisan issue? If we want to restore total citizenship rights to ex felons, then we must include other issues in the discussion. Just to name a few; their rights to bear arms, their rights to practice any legal position, or law Enforcement, or be a jury. Maybe we can talk about clean their criminal records to facilitate their path to employment. But the politicians don’t want to talk about these issues, the discussion is attached only in the right to vote. The reality is that we exclude felons from voting for much the same reason that we generally exclude them from practicing law, or bear arms. We do not trust them with that power because of the contempt for the law they have demonstrated.

There are only two states (Maine, Vermont) and the territory of Puerto Rico where felons are allowed to vote from prisons. There are also ten states in which the felons could have their right to vote permanently removed. Other jurisdictions will have the voting right restored once released from prison, or after parole and probation terms. However, those in which the voting rights are restored may require the payment of court costs and others fees considered as a restitution.

What we found in The Constitution?

The Eighth Amendment states that; “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

Although the 8th Amendment is in place to deal with criminal prosecution only. However, the court, in Trup vs. Dulles (1958) No. 50, had held the divestiture of citizenship of a natural born citizens to be “cruel and unusual”. The reasonable statement of Mr. Justice Black is that divestiture of citizenship as a penalty is more cruel and primitive than torture, because it entailed statelessness as “the total destruction of the individual’s status in organized society”. Therefore, any punishment must be contemplated “in light of the basic prohibition against inhuman treatment” and mist be committed to preserve “the basic concept of dignity of man” by assuring that the power to impose punishment is “exercised within the limits of civilized standards.”

The Fifteenth Amendment of the U. S. Constitution states that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

The 15th amendment was adopted into the Constitution in 1870 as a part of The Reconstruction Act passed by the U. S. Congress dominated by Republicans after the Civil War, and over the veto of President Andrew Johnson. However, discriminatory practices like; literacy test and poll taxes, were in effect later to avoid the vote of black people, especially in the South dominated by Democrats. However, The Reconstruction Act had the desired effect in the South, when the South was divided in five military districts committed to enforce the new outlined ruling based on an universal manhood suffrage. The same year, Hiram Rhodes Revels (R-Mississippi) became the first African American ever sit in the U. S. Congress. More discriminatory practices were affecting the communities for decades until The Voting Right Act enacted in 1965 and signed into law by President Lyndon B Johnson, setting the end of the literacy tests and poll taxes in states and local elections.

Plain and simple, the 15th amendment was clearly designed to establish the right to vote of former slaves (…previous conditions of servitude). Following, we will see an extended meaning for “previous conditions of servitude”.

According to the 13th amendment; “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Here the Amendment is establishing two kind of servitude, slavery or involuntary servitude, with the exception in the case of a punishment for a crime. Therefore, if the imprisonments is considered an ‘involuntarily previous condition of servitude’, then the 13th amendment is building an strong defense of the right to vote for ex-felons.

This conclusion is getting stronger if we look into the 14th amendment:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Therefore, if ex-felons whose debts with the society has been paid, is entering to the same responsibility and obligations as a citizen within the community, then his right to decide the governing authorities must be restored.

References:

Alexander, M. (2012) The New Jim Crow: Mass Incarceration in the Age of Coloblindness. The New Press, New York, NY

Friedman, L. M. (1993) Crime And Punishment In American History. BasicBooks at Perseus Books Group. New York, N.Y.

ProCon.org, The Felons Voting Law Report (11/17/2018) Retrieved from: ...