Incarcerated People and Returning Citizens Belong in Democracy Too

“Prison Bars Photo” by Matthew Henry is licensed under CCO

“At the age of 18, 24 years ago, I lost my rights. I want to feel like a citizen again
in society. In the past, Black voices like mine were silenced, but what’s going
on now is shining a light on what’s been done to people of color at the
hands of those in power, and our voices won’t be silenced anymore.”  
-Nathaniel E. Hall, Richmond*

Woody Ruffin was a prisoner in Bath County, Virginia, sent to work on the Chesapeake and Ohio Railroad during his imprisonment. While attempting to escape, Ruffin killed a prison guard, Louis F. Swats. A jury in Richmond found Ruffin guilty of murder, and he was sentenced to be hanged on May 25th, 1871. During the appeals process before the Virginia Supreme Court, Ruffin’s attorneys argued that Ruffin deserved to be tried by a jury of his peers, a right afforded to him by the Constitution. The Court ruled against Ruffin and in the opinion, elaborated on the status of convicted felons in America stating:

“He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity affords him. He is for the time being a slave of the State.”

The ruling reaffirmed what had already been officiated by the ratification of the Thirteenth Amendment: the abolition of slavery with the exception of imprisonment. However, it also established a broader precedent, that incarcerated people assume a unique status of citizenship in Virginia—one in which their civil rights can be suspended either temporarily or indefinitely. The scope and degree to which these rights can be denied have been further clarified in additional rulings. In 1974, Wolff v. McDonnell ruled that prisoners are entitled to partial (but not full) due process protections as promised by the Fourteenth Amendment. Prison officials have the right to deny such rights, such as the right to present evidence and call witnesses for disciplinary proceedings, in cases where their exercise poses an "unduly hazardous to institutional safety.” In 1987, Turner v. Safely concluded that prisoners are not afforded full First Amendment protections. Specifically, the ruling determined that prisons can infringe upon prisoner’s First Amendment rights so long as this infringement “is reasonably related to legitimate penological interests.” 

One right in particular, however, remains the subject of intense public debate—the right to vote.  In 1974, Richardson v. Ramirez upheld the constitutionality of felon disenfranchisement, citing section 2 of the Fourteenth Amendment. The section allows for states to deny individuals the right to vote “for participation in rebellion, or other crime.” Thus, the voting status of incarcerated and formerly-incarcerated people in the United States is determined at the discretion of state governments. As a result, over six million Americans have been stripped of their voting rights due to a felony conviction. Of these six million, the vast majority (77 percent) have completed their sentences and been released from prison but remain disenfranchised while on parole or probation, as is the law in 18 states. This leads many formerly incarcerated people, like Jen Schroeder, to remain disenfranchised for decades after having completed their sentences. Schroeder was convicted of drug possession and has since completed her sentence, undergone treatment, and now works as a drug addiction counselor. However, Minnesota does not allow individuals on probation to vote. Consequently, Schroeder, who was assigned 40 years on probation, will not vote until she is 71 years old. "I am dedicated to making a difference in the lives of others. I should have the right to vote for the person who I think will make policy changes that will enable me to be successful. There’s absolutely no reason that anyone who’s served their time should be stripped of their right to participate in our democracy,” said Schroeder in a press statement. Indeed, a nation that prides itself as a beacon for liberty and democracy also espouses some of the most draconian voting restrictions in the world. The United States is one of the few democratic nations that allows formerly incarcerated individuals to remain disenfranchised even after being released from prison.

The inspiration behind felon-disenfranchisement laws stems from the medieval concept of civil death or civiliter mortuus: that a person’s physical body can still be alive while their socio-political existence is essentially dead, stripped by the courts. During the early modern period, civil death functioned as a way to strengthen government control by stripping lawbreakers of their property and posterity. Civil death deprived individuals of financial and social capital—namely their ability to manage wealth and hold office. Today, however, civil death functions to disenfranchise millions of Americans—the majority of whom are poor and Black. In an era of mass incarceration, where mere possession of marijuana can lead to years behind bars, felon disenfranchisement has become a weapon of widespread voter suppression—a symbol of the continued dehumanization of incarcerated people in the United States. 

Since their resurrection in the United States, felon disenfranchisement laws have represented one of white supremacy’s many appendages. During the post-Civil War era, in response to the Fifteenth Amendment, which granted Black men the right to vote, Southern states introduced felon disenfranchisement clauses to their state constitutions to prevent widespread enfranchisement of formerly enslaved people. In Virginia, at the 1902 constitutional convention, then-president of the convention, John Goode, warned delegates that, “Under the circumstances existing at the period of reconstruction, the bestowal of universal suffrage upon the negro was a grievous wrong to both races.” However, the Fifteenth Amendment stood in the way of allowing states to ban Black men from voting completely. Rather, “the delegates had to craft exclusionary measures that targeted black voters without explicitly referencing them, lest the U.S. Supreme Court intervene,” wrote journalist Matt Ford in his Atlantic piece, The Racists Roots of Virginia’s Felon Disenfranchisement. 

Despite its racist intent, felon disenfranchisement has survived in Virginia into the present-day. Virginia not only denies all incarcerated people the right to vote but extends this disenfranchisement even after release from prison, requiring individuals with prior felony convictions to request that their rights be restored by the Secretary of the Commonwealth. Consequently, hundreds of thousands of Virginians are left unable to vote. More troubling, felon disenfranchisement succeeded in its original purpose. In Virginia, as well as Florida, Kentucky, and Tennessee, more than 1 in 5 African Americans are disenfranchised. 

Previous elections have demonstrated the serious effect of felon disenfranchisement on political outcomes. In the 2000 presidential election, the closest in the history of the United States, George Bush won over Al Gore in a race that came down to one swing state, Florida, which Bush won by fewer than 1,000 votes. Notably, approximately 620,000 Floridians were prohibited from voting because of felony disenfranchisement laws, and many speculated that without such laws, Al Gore would have become the 43rd President of the United States. Florida’s disenfranchised population has since increased substantially. In 2020, 1,132,493 Floridians could not vote due to felon disenfranchisement. In Alabama, a state with over 328,000 disenfranchised adults, Democrat Doug Jones narrowly beat accused child molestor Roy Moore in the Senate race by just 20,715 votes. These laws have warped our democracy with serious consequences that affect all Americans.

Many are still unable to fathom the idea of felon enfranchisement. “When you’re in prison, you lose rights. It’s called prison not spring break,” said Fox News Host Greg Gutfeld during a segment discussing Bernie Sanders’ recent statements at a town hall favoring voting rights for incarcerated individuals. During the town hall, Sanders was asked if the Boston Marathon Bomber should be allowed to vote. Indeed, prison is not spring break. Even with the right to vote, incarcerated people still experience the loss of freedom, privacy, and income that imprisonment entails. Voting rights do little to improve the material conditions of incarcerated people— regardless of how justified you believe these conditions to be. 

 No one wants to argue on behalf of the Boston Marathon Bomber or other individuals convicted of sinister crimes. In the 2020 presidential race, the vast majority of Democratic candidates, including Joe Biden and Kamala Harris, only supported voter restoration to individuals after they have been released from prison. This is still important progress. And maybe there are certain crimes—so heinous and despicable—that justify disenfranchisement. But other countries recognize this nuance and allow voting restrictions on a case-by-case basis. In Germany, for example, convicted felons can lose the right to vote in specific cases if ordered by the court. But blanket bans on voting rights for incarcerated people do not acknowledge the differences in severity of crimes committed, and many times these bans also prevent returning citizens from voting as well. These bans treat voting as a superfluous privilege rather than a constitutional right. 

In a country where prisoner’s basic rights to legal counsel, compensation for labor, and proper medical care are often neglected, the right to vote seems like a marginal improvement for the treatment of incarcerated people in America. Even after release, returning citizens face barriers to housing and employment. In Virginia, individuals with any prior felony convictions cannot work as teachers, registered nurses, marriage therapists, or real estate agents But the right to vote signifies a certain dignity that we all retain. Our vote symbolizes the commitment elected officials make to serve their constituents. Incarcerated people are a part of the U.S. population, affected by the policies passed by local, state, and federal governments. It’s time for the Commonwealth to recognize incarcerated people as constituents too. 

As the country enters a new phase of reckoning with its criminal justice system, it is absurd that we continually silence the voices of those most afflicted by its failures. We want to discuss the conditions of prisons in America but disenfranchise those who are subjected to its confines. We want to discuss affordable housing, food insecurity, and unemployment but disenfranchise those who are most likely to experience these issues personally. If we accept the overwhelming evidence to be true—that incarceration is inextricably linked to poverty, unemployment, and education—then we must also accept another truth: that our democracy fails to properly reflect public opinion on any of these issues so long as it disenfranchises large swaths of the incarcerated population. 

In the 2021 legislative session, the Virginia General Assembly has the opportunity to end Virginia’s draconian voting restrictions against formerly incarcerated people. Proposed Senate Resolution 272 will amend the state constitution and restore voting rights to approximately 500,000 Virginia residents, the majority of them being formerly incarcerated people who are still banned from voting. The amendment is long overdue. We must choose to treat incarcerated people as democratic citizens rather than politically unviable bodies or “slaves of the state,” as the 1871 court ruling put it. It is time for the Virginia General Assembly to make a decision about what kind of democracy our state wishes to resemble by acknowledging that incarcerated people belong in democracy too.  

*Quotes obtained from Virginia Mercury. Access the article here.