The Incarceration State

If the United States prison population (2.3 million) were a state, it would rank thirty-sixth on the list of states by population, larger than New Mexico. If you were to add to that figure the number of people on parole or probation — 4.5 million, or about one in fifty-four Americans — this hypothetical “Incarceration State” would grow to the size of Tennessee or Indiana, the sixteenth and seventeenth largest states, respectively.

In 2010, a team of researchers estimated the total number of Americans with felony convictions to be about 24.7 million. If we were to take this figure as the Incarceration State’s total population, it would become the third largest state in the union, smaller only than California and Texas. It would also be among the country’s blackest states — 23 percent African American, about the same as North Carolina (22 percent) or New York (25 percent).

The residents of this Incarceration State — whether locked up, under supervised release, or free — face varying degrees of ballot access under the United States’ current election laws. A 1969 US Supreme Court decision (McDonald v. Board of Election Commissioners) affirmed each state’s right to limit the franchise for people with criminal convictions, so long as those policies were not explicitly discriminatory towards protected groups. (In other words, only the language of the law mattered; the disproportionality of its effects did not.)

Today, involvement with the criminal justice system is the most significant predictor of voter disenfranchisement in the country, with forty-eight states limiting access to the ballot for people with felony convictions. (Incarcerated people enjoy full voting rights in Maine, Vermont, and the territory of Puerto Rico.) Restrictions range from lifetime disenfranchisement (Iowa) to the temporary loss of voting rights while serving time in prison (every state except Maine and Vermont).

While many people with felony convictions have been re-enfranchised in recent years — including in Florida and Kentucky, which previously enforced lifetime voting bans — most people still can’t vote while they’re on parole (thirty-four states) or probation (thirty-one states). Nationwide, nearly every single person locked up on a felony conviction, whether they’re held in a state prison, county jail, or federal penitentiary, forfeits their voting rights for the entire duration of their incarceration.

“There’s this idea that once you have broken some kind of social contract, by committing a crime or whatever, you no longer have the right to participate in any part of society,” Emmett Sanders, author of the report Full Human Beings: An Argument for Incarcerated Voter Enfranchisement, told me. (Emmett Sanders, who was incarcerated for more than twenty-two years in Illinois, has no relation to the presidential candidate of the same surname.) “But to say that because you have trespassed, for example, you don’t have the moral integrity to make a decision about issues like how the tax burden is distributed? It just doesn’t make any sense. Those two things are not relatable.”

According to estimates from the Sentencing Project, 6.1 million people were disenfranchised due to a criminal conviction at the time of the 2016 national elections. This number represents one in forty voting-age Americans. For African Americans, the numbers are even more stark — one in thirteen voting-age African Americans was disenfranchised by a criminal conviction in 2016.

Chipping Away at Democracy

Challenged to defend his position on incarcerated voters at that CNN town hall in April 2018, Sanders said, “We live in a moment when cowardly Republican governors are trying to suppress the vote. … I say to those people, if you don’t have the guts to participate in free and fair elections, you get another job and get the hell out of politics.”

Sanders is right to point out that disenfranchisement is becoming more pronounced as Republicans in many states attempt to impose minority rule. In 1979, 1.2 million people were disenfranchised due to felony convictions; this number grew steadily through 2000 (4.7 million) and 2010 (5.9 million), before reaching a possible peak in 2016 (6.1 million).

“Around the country, felony disenfranchisement has an incredibly racist past,” said Henal Patel, director of the Democracy and Justice Program at the New Jersey Institute for Social Justice. (The New Jersey Institute for Social Justice, as a nonpartisan organization, has not endorsed Bernie Sanders or any other candidate for public office.)

Predictably, disenfranchisement by criminal conviction is rooted in the reactionary backlash to emancipation that has distorted American democracy since at least the nineteenth century. In their book Locked Out: Felon Disenfranchisement and American Democracy, authors Jeff Manza and Christopher Uggen show that the disenfranchisement of voters convicted of felonies was a state-by-state process that began around 1800 and reached a plateau in the 1890s.

The process took place in two distinct waves. The period between 1787 and the Civil War saw fourteen Northern and non-slave states (including New York, Pennsylvania, and California) impose new voting restrictions connected to criminal statutes: a clear response to anxieties about growing black populations in those areas. In the South, a wave of similar laws was passed as white supremacists regained control of state legislatures immediately following the Reconstruction era; between the end of the Civil War and 1899, eighteen more states barred people convicted of felonies from voting. By the turn of the twentieth century, only seven states — Maine, Massachusetts, Michigan, Montana, New Hampshire, Utah, and Vermont — had no voting prohibitions on the books for people convicted of crimes. Today, only Maine and Vermont have no such prohibitions.

In New Jersey, the state legislature first tied voting rights to conviction status through a constitutional amendment in 1844, the same year it limited the franchise to white men. That restriction has had a lasting effect on New Jersey politics. Last year, about 102,000 people were denied the right to vote because of a criminal conviction in New Jersey. African Americans comprised 43 percent of those disenfranchised voters, despite representing only about 15 percent of the state’s total population.

The effects of felony disenfranchisement on rates of black political participation span generations by frustrating the formation of future voters. “When you remove voting from the home [by disenfranchising parents], you remove a model of political participation that could affect the next generation coming up,” Emmett Sanders told me. “This kind of disenfranchisement is not just cutting out the voters as they exist. It’s stemming the tide of future voters, as well. Entire generations are undermined in this way.”

The disenfranchisement of incarcerated people is even more insidious when you consider the fact that prison populations are counted in the census as residents of the jurisdictions where they’re housed, not where they were arrested. Through a process activists call “prison-based gerrymandering,” state prisoners — who disproportionately come from diverse urban centers — are usually included in the official population numbers of the majority white rural areas where most state prisons are located. This system, which resonates darkly with the history of the three-fifths compromise, distorts the districting process by artificially inflating the weight of rural votes, possibly contributing a conservative bias in the legislatures of states like Michigan and Pennsylvania.

As Robert Saleem Holbrook, a prisoners’ rights advocate who was incarcerated for twenty-seven years in Pennsylvania, put it recently, prison-based gerrymandering “falsely bolsters the power of rural white areas, effectively using incarcerated people as voiceless tools in an unfair political system.”

Making America Whole Again

Efforts to overturn lifetime voting bans — including the passage of Amendment 4 in Florida and Governor Terry McAuliffe’s mass clemency measures in Virginia — have received increased attention in recent years. This has fortified efforts to restore voting rights to all people with criminal convictions, inside and outside of prison.

The first bill the House of Representatives’ incoming Democratic majority introduced in 2019 was the For the People Act. This far-reaching election reform bill included a measure restoring voting rights to all people convicted of felonies immediately upon their release from prison. The bill, which would have eliminated parole and probation disenfranchisement nationwide, passed the House in a straight party-line vote (it now languishes in the Senate). Later, in November of that year, Representative Ayanna Presley (D-MA) introduced a house resolution known as the “People’s Justice Guarantee” calling for even deeper reforms, including full re-enfranchisement for incarcerated people.

“We’re in a different conversation now nationally than we were two years ago, when there was a lot of reticence [about re-enfranchising people in prison or on supervised release],” Patel said. And while federal legislation has so far failed to pass, reformers have won key victories and significantly widened the franchise in states around the country.

As Bernie Sanders has noted, there are two states in which incarcerated people retain full voting rights, and he happens to be from one of them. (“As it happens, in my own state of Vermont, from the very first days of our state’s history… everybody can vote. People in jail can vote,” he said in April 2018.) But as Patel pointed out, neither Maine nor Vermont provide an example of a state successfully repealing a conviction disenfranchisement policy; they’re simply the only states where such policies were never enacted. (Patel also noted that Maine and Vermont are the two whitest states in the country — 95.3 and 95.2 percent white respectively, according to the 2010 census.)

Patel acknowledged the need for a federal bill to restore voting rights to incarcerated people across the country, but also cautioned that the federal government is often “slower on the uptake” than state governments are. “There are movements happening right now,” Patel said. “There are advocates in Virginia and New Mexico and Massachusetts and Illinois and California and Washington. You get one state to do it, you build momentum, and then it makes the idea of a federal bill a lot more viable.”

Recalling that federal interventions on issues like marriage equality have come only after the successful implementation of reforms at the state level, she said, “No state has gone all the way yet. We need a state to do that. We’re really pushing for New Jersey to be the first.”

In New Jersey, advocates organize under the banner of the 1844 No More Campaign, invoking the year the state first introduced voting prohibitions for criminal convictions to draw attention to the policy’s racist past. Last year, they succeeded in getting a bill through the state legislature that restored the franchise to people on parole or probation. When the new law took effect on March 17, it re-enfranchised about 83,000 voters. The New Jersey Institute for Social Justice, together with other groups, continues to organize for full restoration.

Activists have made significant strides in California, as well. Taina Vargas-Edmond, founder and director of Initiate Justice, explained that California enforces a convoluted and uneven set of franchise restrictions, baring people in state prisons from voting but preserving voting rights for people incarcerated in county jails. As the California state prison system responds to concerns about overcrowding by transferring state prisoners to county jails — a phenomenon known as “realignment” — the state’s web of voting restrictions has become even more difficult to navigate.

State prisoners rehoused in county jails under realignment are allowed to vote under California law. In this way, realignment could represent an expansion of the franchise for incarcerated people in California. But in some cases, Vargas-Edmond said, jail employees fail to inform state prisoners of this right, whether out of negligence or because they’re misinformed about the law themselves.

This problem is bigger than California. The sizable majority of the more than 750,000 people locked up in county jails across the country are held on charges for which they have not been convicted. A 1974 US Supreme Court decision (O’Brian vs. Skinner) affirmed that unconvicted prisoners, most of whom remain incarcerated simply because they can’t afford bail, retain full voting rights. But very few people who find themselves in a jail cell on election day are able to actually exercise that right. (The sheriff of Cook County, where Chicago is located, recently made headlines by establishing a polling place inside his jail; were the federal government interested in preserving the Constitutional rights of unconvicted prisoners, it would require all sheriffs nationwide to follow suit.)

Like in Maine and Vermont, people incarcerated in California jails must vote in the district where their last non-prison address is located, and they must vote by mail. Asked about the availability of election materials and absentee ballots, Vargas-Edmond said, “It’s a huge problem. A lot of people don’t know they have the right to vote while they’re incarcerated in a county jail. And unfortunately, a lot of sheriffs don’t know the law themselves, or at least aren’t going out of their way to make sure information about the law is available to people in their jails.”

Last year, Initiate Justice and other advocates introduced a bill in the California state legislature called the Free the Vote Act (ACA 6). If it passes, it will place the question of parole/probation re-enfranchisement on the November ballot as a state-wide referendum. If that ballot measure were to pass, California would join New Jersey as a national leader in re-enfranchisement, and about 50,000 Californians would recover their right to vote.

New Jersey and California are not the only states where the fight continues. In Massachusetts, which only introduced felony disenfranchisement in 2000, the Emancipation Initiative has knit together a coalition calling for that prohibition’s repeal, in part by organizing voters outside of prison to “donate” their ballots to disenfranchised voters in prison.

It’s true that a tremendous array of powerful pro-incarceration forces, from prison guards’ unions to victims rights’ groups to DAs’ associations, consistently frustrate efforts to win even the most cautious reforms to the US criminal justice system. Still, both Patel and Vargas-Edmond told me that their campaigns for re-enfranchisement have had no organized opposition to speak of.

Our opponents may come out of the woodwork as we move closer to nationwide re-enfranchisement. But for now, it appears this is our battle to win.

The Coming Jubilee

Incarcerated people all over the country are eager to exercise their democratic rights. When the New Jersey Institute for Social Justice began sending surveys into state prisons, asking  incarcerated people for testimonials about their disenfranchisement, the organization only expected about ten or twelve responses, due to difficulties getting mail in and out of prisons. Instead, they received more than 100 replies, Patel told me.

Their report, A Value to the Soul, includes quotes from more than a dozen people disenfranchised by imprisonment in New Jersey. One of those people is Ron Pierce, a former Marine and lifelong New Jerseyan who was incarcerated in the state for thirty years. “When I became a convicted person, I became relegated to the shadows,” Pierce wrote. “Losing my most fundamental human right — the right that protects all other rights — made me less than a full citizen, a member of the marginalized society.”

Initiate Justice conducted a similar survey of more than 1,000 people in prison and on supervised release in California, publishing their results in a report called Democracy Needs Everyone. In both states, the researchers found that incarcerated people care deeply about issues that affect their loved ones outside of prison — notably health care, education, and public safety. “A lot of people expressed really wanting to vote for their kids’ school board elections,” Patel said.

This resonates with Emmett Sanders’s own experiences while incarcerated in Illinois. “Incarcerated people care about criminal justice reform, but they care about other things too,” he said. “People in prison are concerned about whether or not their children can go to school. They care about their loved ones having access to medical care, to old age care, to mental health care.”

Of course, the policy area in which incarcerated voters could likely have the most impact is criminal justice. “In prison, your whole entire life is impacted by policy,” Vargas-Edmond said. “You know that policy at the administrative level determines everything, from what time you get up in the morning, to when you eat, what you can wear, how often you can contact your loved ones outside. People become acutely aware of the importance of policy and the importance of having their voice heard.”

“People in prison are, in every way, wards of the state, with no way to demand accountability from those who are in control of them,” added Patel. “It’s a big reason why we have a terrible criminal justice system, and mass incarceration is what it is. If they had the right to vote, you would actually see differences.”

Emmett Sanders agreed. “What the right to vote demands, above all, is observation. There are human rights abuses happening in prison, and they’ll continue as long as people aren’t watching. If you have people who can vote, there’s some kind of oversight,” he told me.

The effects of incarcerated voter enfranchisement would probably be felt most strongly in local elections, particularly for those offices connected to the criminal justice system, like judges and district attorneys. (In fact, incarcerated organizers have already been instrumental in the election of reform DAs like Philadelphia’s Larry Krasner.) And allowing incarcerated people to choose whether they register at their last address or in the district where they’re housed — as any full enfranchisement bill should — would enhance this power still further, while also correcting some of the electoral distortions caused by prison-based gerrymandering.

While the racial demographics of the US prison population do suggest that the Incarceration State is a blue one, when it comes to identification with particular political parties, the partisan breakdown among incarcerated people more or less mirrors the breakdown outside of prisons.

Still, while the possible effects of incarcerated voter enfranchisement on national election results are impossible to predict, we shouldn’t underestimate the power of re-enfranchisement to transform the national political conversation on incarceration.

“Let’s think about presidential campaigns, and think about Iowa, which is the first state to weigh in during nomination season,” Patel told me. “Right now, Iowa is also the only state that permanently disenfranchises people because of a criminal conviction. Imagine if people incarcerated in Iowa could vote.”

“Imagine if, every four years, when the most powerful elected officials in the country descend on Iowa to fight for every single vote, they had to campaign seriously in prisons,” Patel continued. “Imagine what that would mean for the candidates’ platforms. Some of the brightest policy minds in the country work for these campaigns. You would see a major push for criminal justice reforms, simply because those votes would matter!”

Sanders continues to struggle for the Democratic nomination for president, having emerged bruised from Super Tuesday and the subsequent round of voting on March 11, but still alive. His only viable opposition is Joe Biden, a mass incarceration zealot who has spent his decades as a lawmaker endorsing and expanding the catastrophic law-and-order policies that produced the carceral crisis we live with today. When it comes to the urgent issue of criminal justice reform, the choice for Democratic primary voters couldn’t be more stark.

“I am hopeful,” Emmett Sanders told me when I asked him about the future. “Now we have a candidate who’s actually willing to stand up and say that incarcerated people need to be heard. And I think that’s very important.”