Last April, at a CNN town hall, Bernie Sanders said what none of his opponents in the Democratic primary were willing to, either then or since: that incarcerated Americans should be allowed to vote, regardless of the crimes for which they’ve been sentenced. Because the example of Boston Marathon bomber Dzhokhar Tsarnaev, who currently resides in a Colorado supermax prison, had come up in the debate, the chatter began to swirl around other notorious killers, including mass shooter Dylann Roof. Bernie wants to give these monsters the vote — that was the line from the right and centrists, surely the only time we’ve lent so much weight to specific individuals in the democratic process. The rest of the time, “one vote can’t possibly make a difference,” but when a domestic terrorist gets a ballot, their vote derails the system?
It was clear from the jump, however, that critics cared more about state vengeance, not the political leanings of prisoners, nor their effect on elections. “Part of the punishment when you’re convicted of a crime and you’re incarcerated is you lose certain rights; you lose your freedom,” Pete Buttigieg insisted after Sanders staked out his position. What went unchallenged there was the presumption that this loss of freedom should extend to the loss of voting rights laid out in various post-Civil War constitutional amendments, or the generally ad hoc (and typically unjust) way this nation has conferred those rights throughout history.
Buttigieg was also wrong on the basics: As law scholars keep pointing out, U.S. felon disenfranchisement “is formally regulatory, not punitive, but features the harshest restrictions on offender voting rights of any modern democracy.” Finally, the conversation didn’t touch upon the sheer number of Americans behind bars. We have the highest incarceration rate in the world, and people of color are locked up at such extreme rates that the prison-industrial complex is, in essence, the New Jim Crow. A huge part of that racial control apparatus is the elimination of voting rights for millions of citizens, often for life. The core of the argument over whether felons should be allowed to cast ballots from prison, then, isn’t about empowering a handful of mass murderers, but ensuring that a huge demographic — disproportionately non-white — isn’t ripped out of a government that’s still supposed to represent them.
So, what would an America where prisoners can vote look like? For starters, it would need to have the guarantee of this right enshrined at the federal level. As with the chaotic state-by-state legalization of cannabis, there have been piecemeal and messy efforts to change felon voting laws. Florida faced many hurdles in enacting an approved measure to restore the vote to those with felony convictions who are no longer incarcerated, while Maine and Vermont already permit voting from prison (and haven’t fallen into ruin as a result). But those prisoners and people who remain eligible to vote while detained in county jail face an additional set of obstacles in trying to exercise that ability, as Nicole Lewis of the nonprofit Marshall Project has written: “Incarcerated people are restricted from using the internet and often cut off from news in the places they used to live. They are not allowed to campaign for candidates, display posters or show other signs of political partisanship.” This is known as “practical disenfranchisement.”
That’s why a top-down, nationwide set of rules and protections for voting from lockup would be essential. And what then? Would these people, as some pundits and voters apparently fear, rise up as a monolithic bloc and elect some depraved super-criminal? Actually, they seem to lean plain old Democratic, which is probably why Republicans are so aghast at the idea of them continuing to partake of this patriotic duty. But whatever their affiliation, more important is their involvement. When an NBC reporter interviewed Joseph Jackson, who had cast a vote from a Maine prison in 2008 for Barack Obama while serving a manslaughter sentence, he related how this opportunity had put him on course for a career after his release: “It committed me to prison reform, social reform, to work in social justice,” he said. “Having some sense of community and being part of the society is really necessary.” The same article quoted advocates who spoke of similar rehabilitative benefits.
And the effect is sure to go both ways. While prisoners would retain a voice in the republic that judged them, the politicians who dictate laws and punishments would have to consider this population as a social and electoral force — fellow Americans, in other words. A country whose leadership continues to feel responsible to the human beings they put in cages will naturally tip toward fairer methods and mechanisms of incarceration, whereas right now this enormous group can be dismissed as inert and powerless, which means their beliefs and legitimate grievances go unheard.
Imagine a candidate for president visiting a prison to get out the vote, no longer able to ignore this constituency; imagine the competition for these votes, the attention paid to justice reform, righting wrongful convictions and preventing others. To return the franchise to prisoners is to send the message that no crime can fully remove you from the architecture of the commonwealth, or reduce you to mere data. You are, quite simply, still here.
Only someone afraid of what these people will say can seek to cruelly enforce their silence.