A primer on felony disenfranchisement

*This excerpt is part of a forthcoming report on felony disenfranchisement titled ‘Democracy Needs Everyone’ by Initiate Justice*

While there is certainly no shortage of unconscionable features of the criminal justice system, felony disenfranchisement stands out as particularly draconian. In California, felony disenfranchisement laws were written into the state constitution in 1849, but its historical origins may date back to Antiquity. The practice of disenfranchising citizens for felony convictions is widely legitimized across the United States, and actively functions at historically unprecedented rates in a modern constitutional democracy. The number of people who have been stripped of their right to vote has risen dramatically as a result of mass incarceration. In 1976, 1.7 million Americans were disenfranchised due to a felony conviction. This number rose to 3.34 million in 1996, 5.85 million in 2010, and 6.1 million in 2016. The rationale for disenfranchisement often rests on unarticulated ideological grounds, but has significantly diluted the minority vote over time and has caused incalculable harm. It is fair to speculate that if the trend of hyper incarceration hadn’t grown in a racially disproportionate manner, such that the criminal laws were applied more generally to members of the political majority (white middle class, or suburban voters), this exclusionary practice would have been abolished by now.

The Ancient Greek civilization relied on an early practice of felony disenfranchisement that involved heavy handed themes of isolation and deprivation that are still very much alive in the contemporary practice. Punishment in Athens revolved around the penalty of atimia, a form of disenfranchisement that allowed the democracy to identify and ostracize citizens who violated the collective honor of society. Those sentenced to atimia were unable to attend Assembly meetings, serve as jurors, or have grievances addressed by the courts, which often resulted in de facto civic death. The link between honor and citizenship was central to the existence of Greek society, and the exclusion from these political spheres contributed to social, physical, legal, and economically vulnerability that pushed offenders to the fringes of society. The creation of a new caste of non-citizens who were barred from participating in basic democratic activities as a result of a conviction became a common practice that would be replicated throughout history.

Although felony disenfranchisement was present from the time that the first colonists arrived in America, it was not until after the American Revolution that disenfranchisement laws were formalized and written into state constitutions. Virginia became the first state to pass a law prohibiting ex-felons from voting, but many soon followed. During the Antebellum period, some two dozen states had statutes barring felons from voting or included felon disenfranchisement provisions in their state constitutions. At the time of the Civil War, over seventy percent of the states had adopted felony disenfranchisement laws. A wave of broader felony disenfranchisement laws was implemented in the 1860s and 1870s, following the passage of the 15th amendment, which expanded the right to vote to formerly enslaved Black men. The re-enslavement of Black Americans after the Civil War in the form of convict leasing also greatly increased racially discriminatory laws aimed at controlling this population of new voters, and is inextricably linked to the history of felony disenfranchisment in the United States.

The spectrum of felony disenfranchisement laws across the United States ranges from two states with no voting restrictions at all, to seven states that disenfranchise citizens for life. In California, individuals in prison and on parole are barred from voting.  While this has generated widespread outrage, it actually represents an evolution from the original language of the California Constitution that permanently disenfranchised all Californians with a criminal record before 1974.

In the judicial arena, several landmark cases have challenged felony disenfranchisement as patently unconstitutional, but none have been found to invalidate the practice. The watershed moment in jurisprudence regarding felony disenfranchisement revolves around the Richardson v. Ramirez (1974) decision. The case involved three Californian citizens who had been convicted of felonies, served their sentences and completed their terms of parole, but were subsequently denied the right to register to vote when they attempted to because of their felony convictions. A petition was filed in a California court challenging the exclusion on the basis that it violated the Equal Protection Clause of the 14th amendment. The California Supreme Court agreed, found the practice to be constitutionally impermissible, and stated that the penalty of disenfranchisement was ‘too blunt an instrument’ to protect the ballot box. However, this decision was promptly appealed to the United States Supreme Court, which contradicted the lower ruling and reversed course on the constitutionality of felony disenfranchisement. The majority used a strict textualist interpretation and decided felony disenfranchisement is permissible per the language of the 14th amendment that allows punishments like denying the right to vote for participation in crime. The legal reasoning is worth quoting at large:

 

“Pressed upon us by the respondents, are contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the ex-felon that he be returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them against those advanced in support of California’s present constitutional provisions. But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.”

 

After the Richardson decision, California voters approved Prop. 10 in 1974 that allowed citizens with a criminal record who aren’t on parole or in prison the right to vote. But since felony disenfranchisement laws are still in and of themselves constitutional in the United States, Courts are not the proper forum for reform. Legal scholars suggest that Congress and state legislatures may be the more appropriate venues.

A 2016 study estimated that 222,557 Californians do not have the right to vote due to felony disenfranchisement. This is .74% of the California voting age population. However, the same study found that 3.41 percent of African Americans in California have been disenfranchised. Heroic grassroots efforts to eliminate felony disenfranchisement laws are gaining steam across the country. The movement is increasingly entering public consciousness, and rationales to support the continued practice remain unpersuasive. A recent poll found that 81.7% of voters believe right to vote should be restored at some point after felony conviction. Looking to the global community, the Supreme Court of Canada, the Constitutional Court of South Africa, the Supreme Court of Israel and the European Court of Human Rights have overturned voting restrictions for incarcerated people, invoking principles of rehabilitation and promotion of civic life over the past two decades.

In many ways, voting can be seen as the right to have rights. As such, it should be considered the most important social good, and should not be revoked without serious consideration instead of continuing as an unfortunate accident of history. Initiate Justice is committed to the long-term goal of restoring voting rights to all Californians.

Advertisements

Morality demands Abolition

We need to talk about the contours of prison abolition in the twenty-first century. As a social movement, abolition has taken on different forms in the universal arc of justice. Prison abolition is often misunderstood as burning down prisons and other revolutionary imagery, but it more so revolves around eliminating the need for prisons in society. That is a significant distinction, folks. To flesh out this idea, let’s turn to Angela Davis for a working definition:

When we call for prison abolition, we are not imagining the isolated dismantling of the facilities we call prisons and jails. That is not the project of abolition. The notion of a prison-industrial complex reflects the extent to which the prison is deeply structured by economic, social, and political conditions that themselves will also have to be dismantled. Capitalism continues to produce problems that neither it nor its prisons are prepared to solve. So prison abolition requires us to recognize the extent that our present social order – in which are embedded a complex array of social problems – will have to be radically transformed.

The rise of the prison industrial complex and its continuing grip on the lifelines of society is not a necessary development. Not only is it an indictment of an unfettered & racially motivated punitive impulse, but it also speaks to larger issues emanating from contemporary global capitalism. If this moment of hyper incarceration happened in the past, we would look to it in horror and disgust as a dark chapter in our history.

Folks who have nothing will do anything to get something. An abolitionist framework accepts this premise, points out the reasons why certain communities have no autonomy, and seeks to correct past injustices. It seeks to understand the connections between institutions that we usually think are disconnected. It realizes that education is a major linchpin of institutionalized racism. And, perhaps most importantly, an abolitionist framework grasps that persistent poverty in the heart of global capitalism leads to larger prison populations, which in turn reinforce conditions that reproduce intergenerational poverty.

Prison abolition is a project that reimagines institutions, ideas, and strategies, and seeks to create new institutions, ideas, and strategies that will render prisons obsolete. A world without prisons is conceivable.

 

The shadowy domain of Pay-to-Stay jail programs

What are pay-to-stay jail programs?

Pay-to-stay jails are city operated jails in CA that allow certain folks convicted of misdemeanor and low-level offenses to spend their time in secluded jails that are relatively comfortable and removed from the usual custodial settings in CA for a daily fee. The pay-to-stay jail options are exclusively offered in Southern California counties, with one option in Fremont as the lone exception. Currently, there are nearly 200 beds for rent in Los Angeles and Orange counties. An excellent LA Times expose revealed that, “The California penal code section that allows people to serve county jail sentences in city jails specifies that the option is available for misdemeanor offenses committed in the same county where the pay-to-stay jail is located. But in practice, judges have allowed offenders convicted of felonies to participate in pay-to-stay — and allowed others to take advantage of the program even though they committed their crimes elsewhere. Nearly every pay-to-stay program welcomes people whose crimes have taken place across county or even state lines. In Southern California, city jails have housed more than 200 people who broke the law in Arizona, for instance, and have also accepted clients with arrests as far away as Iowa, Washington, Minnesota and Montana. Prices vary widely, with each city setting its own rate. Defendants can get a bargain-basement bed in La Verne for $25 a night or pay a modest $75 a night in Hawthorne. Or they can splurge, paying $198 a night in Redondo Beach or $251 a night in Hermosa Beach. Monterey Park even offers the option of serving time in half-day increments, for $51. The region’s pay-to-stay jails took in nearly $7 million from the programs from 2011 through 2015, according to revenue figures provided by the cities. In attracting paying customers, some cities openly tout their facilities as safer, cleaner and with more modern amenities. The Santa Ana jail’s website, for example, notes that jail is a ‘highly disruptive experience’ and promotes its jail as a place where criminals can serve their time in a ‘less intimidating environment.’ One of the most attractive conveniences in pay-to-stay programs — not available at county jail — is the option to go on work furlough, which allows people to go to their jobs with an ankle bracelet and return to the jail in the evenings to sleep. At least eight city jails offer work furlough, and most of the other pay-to-stay facilities allow people to serve time on weekends.” The work-release program recently allowed a professional basketball player for the Los Angeles Lakers to play in games while serving time for a DUI.

Who’s staying in these programs & for how long? 

pay to stay

 

pay to stay 2

 

pay to stay 4

This sounds incredibly problematic. 

Yep, it certainly does. But it’s just another example that it’s better to be rich & guilty than poor & innocent in the criminal justice system. County jails in CA are replete with themes of brutality, overcrowding, violence, and fear. In comparison, pay-to-stay jails are like paradise. Just look at this advertisement:

pay to stay 3

Is it still punishment?

Yes, but also not really. There is still a modest deprivation of liberty, but pay-to-stay allows these folks lives to go on mostly uninterrupted — a feature of the criminal justice system that few are privileged to enjoy. Demographic breakdowns of who’s taking advantage of these programs is not available, but we are probably correct in drawing our own conclusions about these *qwhite* interesting programs in Southern California.

 

Previously in the shadowy domain series: Sentence enhancements, Gang Injunctions

Second chances

In CA, there have been over 500,000 arrests for marijuana offenses in the past ten years. But now that marijuana is legal, what is CA going to do with all these folks? The answer might surprise you — CA is going to do the right thing. CA is offering the opportunity to have criminal records cleared or reduced for marijuana offenses ranging from serious felonies like distribution, to small infractions like simple possession. At least 4,500 folks have already submitted petitions to have their sentences re-evaluated, but prosecutors reserve the right to challenge such requests by looking at criminal history or threats to public safety.

Many Californians probably don’t know this mechanism for a clean slate exists. It’s on us to spread the word.

 

Who is afraid of too much justice?

Nothing short of abolition will correct the over-representation of people of color in the criminal justice system. The racial disparities that exist in the criminal justice system are not simply unfortunate or unavoidable consequences, but rather intentional State-sanctioned disappearances. The accepted way of challenging discrimination is to rely on the Courts to protect the minority from the tyranny of the majority, but as we’ll look at shortly, Courts are not impartial observers, but rather function as stewards of the White Supremacist State we live in. Any hope for meaningful change will have to come from outside the current box we exist in.

The watermark case of racial discrimination in the criminal justice system is McClesky v. Kemp (1987). The NAACP Legal Defense Fund presented extensive statistical evidence of racial disparities in Georgia’s death penalty system. They found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims, 32% of the cases involving white defendants and white victims, 15% of the cases involving black defendants and black victims, and 19% of the cases involving white defendants and black victims. While noting that racial disparities certainly existed, the Supreme Court decided that statistics alone did not prove a discriminatory purpose and characterized the racial disparities as an ‘inevitable part of the criminal justice system’. Further, the Supreme Court expressed concern that if they ‘accepted the claim that racial bias has impermissibly tainted the captial sentence decision, we could be soon faced with similar claims as to other types of penalty which throws into serious question the principles that underlie our entire criminal justice system.’

First off, racial disparity undoubtedly exists in sentencing. Denying this is akin to denying global warming, another trend that is backed by obvious evidence but is still denied by many.

Next up, let’s dig into the principles that underlie our entire criminal justice system as the Supreme Court beckons. This line of thinking is a fear of too much justice. Any critical observer of United States history understands the law evolved as a means for the elite to preserve their hierarchy. From slavery, to convict leasing during Jim Crow, to mass incarceration today, this continuum of State-sanctioned efforts to fundamentally dismantle communities of color is painfully transparent. The first organized police force funded by the State during the colonial era was the slave patrol. It’s difficult impossible not to draw parallels between the first police force that rounded up slaves attempting to escape, and police officers today that continue to kill unarmed black men without consequence.

When the Supreme Court ponders the principles that underlie our criminal justice system, how could the answer possibly be anything other than White Supremacy? This answer may frighten the White liberal who believes it’s the conservative movement who’ve built the prison industrial complex, but actually White apathy & cowardice is not restricted to voting Red on election day. Procedural justice pacifies us by giving the appearance of substantive justice, but the presence of Due Process laws doesn’t necessarily produce just outcomes. Despite the specific origins of legal protections like the Fourteenth Amendment, the Supreme Court has taken a passive view of their own ability to address the suffering emanating from twenty-first century manifestations of racial discrimination. As the Courts become less available as a legal resource for challenging State-sanctioned White Supremacy, and at times even endorse such discriminatory intentions, communities are left with few options in search of justice. Abolition doesn’t sound radical in this context, it sounds like the moral choice.