Faced with the question of whether or not he would restore voting rights to currently incarcerated felons at an April 21st town hall hosted by CNN, Senator Bernie Sanders didn’t flinch: Yes, to convicted rapists and murderers, and yes, to terrorists like the Boston Marathon bomber too.
“I think the right to vote is inherent to our democracy, even for terrible people,” Sanders, who participated in the event along with a handful of other Democratic 2020 presidential contenders, told the audience. “Because once you start chipping away, you’re running down a slippery slope. I do believe that, even if they are in jail, they’re paying their price to society, but that should not take away their inherent American right to participate in our democracy.”
An estimated 6.1 million Americans are kept from the polls each year due to felony charges. Although individual policies on felony disenfranchisement remain varied, 20 states retract the right to vote while an individual is incarcerated, but automatically restore the franchise upon their release. Other states allow parolees and probationers to vote but not inmates, and in Maine and Vermont—the state that Sanders represents—the suffrage of inmates, probationers, and parolees is unimpeded across the board.
A majority of Americans now supports voter enfranchisement measures, including allowing convicted felons to vote after having completed their prison time, according to data released by the Pew Research Center in 2018. While many of the other 2020 Democrats support re-enfranchisement initiatives for formerly incarcerated individuals who have “served their time,” all but Sanders have been hesitant when it comes to supporting policies that would restore voting rights for those currently behind bars.
During the same town hall event, California Senator Kamala Harris said that the right to vote is “one of the very important components of citizenship and … something that people should not be stripped of needlessly,” but stopped short of endorsing re-enfranchisement for currently incarcerated felons, saying only that “we should have that conversation.”
Senator Elizabeth Warren offered a similar line. “Once someone pays their debt to society, they’re out there expected to pay taxes, expected to abide by the law, they’re expected to support themselves and their families, I think that means they’ve got a right to vote,” Warren said. “While they’re incarcerated, I think that’s something we can have more conversation about.”
Other candidates, including South Bend, Indiana, Mayor Pete Buttigieg, flatly said that proposals to re-enfranchise the incarcerated go too far.
“Enfranchisement upon release is important, but part of the punishment … is you lose certain rights,” he said. “You lose your freedom. And I don’t think during that time it makes sense to have that exception.”
True to Sanders’ prediction while giving his answer that he had likely just written his own attack ad, many on the right were quick to cast his position as “radical leftism.”
“Let’s vote on @BernieSanders idea to allow rapists, murderers, and terrorists to vote from prison,” Senator Lindsey Graham (R-South Carolina) tweeted. “See where every elected official stands!”
Christopher Uggen, a professor of sociology and law at the University of Minnesota and a fellow of the American Society of Criminology, says that, while Sanders’ position is being characterized by the media and pundit class as radical by today’s standards, in reality, disenfranchisement has evolved to become “this peculiarly American thing; we have the strictest laws that affect the greatest number of our citizens.”
Since its earliest beginnings, the United States has grappled with the question of who deserves the right to vote, but most modern scholarship traces the origins of disenfranchisement of criminals to ancient Greek and Roman civilizations, when the franchise was so coveted as a form of civic engagement that the threat of losing it alone could be used as a cudgel to reduce crime. The practice of punitive disenfranchisement was later adopted and expanded upon in England, where it became known as “civil death“—a loss of civil rights that served to stigmatize and humiliate criminals by way of social isolation.
At the time of the first U.S. presidential election, suffrage was by-and-large afforded only to white, land-owning males, but post-Civil War amendments to the U.S. Constitution later barred discriminations based on “race, color, or previous condition of servitude” and “on account of sex.” The Twenty-Fourth Amendment removed restrictions based on a failure to pay taxes, and the Twenty-Sixth Amendment codified the right to vote of any individuals “who are eighteen years of age or older.”
Because states have always had the power to set their own voting requirements, the franchise has always varied based on where you are in the U.S. The civil rights movement marked the beginning of the first real strides in tearing back some of the most pernicious obstacles to suffrage, including Jim Crow-era “literacy tests” that had been initially established as a means to keep black voters from the polls.
“I think if you were starting with a clean sheet, you’d start with the idea that, in a democracy, everyone should have the right to vote,” Uggen says. “Rather, we’re starting from a sheet that has centuries of racial oppression, class oppression, and a high degree of disenfranchisement, and so that’s the status quo.”
Given recent political history, the fact that so much of the Democratic field remains devoted to more punitive approaches to voting rights comes as little surprise. After Republicans notoriously rebranded as the “tough on crime” party in the late 1960s, Democrats pioneered a criminal crackdown of their own during the Clinton era in the 1990s that helped contribute to the mass incarceration crisis that still prevails today. (Former Vice President Joe Biden, who recently announced his own 2020 candidacy, and 2016 presidential hopeful Hillary Clinton have both been implicated for their efforts to increase criminal punishment during those years.)
Uggen says that, throughout the course of his research, he’s observed how support for re-enfranchisement of felons increases as individuals are able to put distance between themselves and the crimes they’ve been convicted of. In one public opinion poll he conducted, upwards of 80 percent of Americans favored restoring voting rights to those who have already served their time; when it came to re-enfranchising probationers and parolees, that percentage dropped to around 66 percent. Only 30 percent of respondents said that they favored restoring the right to vote for current prisoners.
“You can kind of visualize the support waning as one gets closer to the prison, and once you’re behind the prison doors, that’s when you lose the majority of support in the public opinion,” Uggen says.
Last fall, proponents of criminal justice reform netted a major win when the state of Florida voted to approve a ballot measure to amend the state’s constitution in order to re-enfranchise the more than one million citizens in the state with felony convictions. But the celebrations were short-lived: In April, Republicans in the state’s legislature voted to advance a bill that would require former offenders to pay all fines and legal fees in full before a sentence is deemed completed—a move that critics say is likely to continue to disenfranchise individuals who have already served their time.
Despite recent setbacks, Uggen said that it’s ultimately positive that the 2020 Democrats are already trading blows on criminal justice reform—particularly because a robust public conversation might actually help to expose the punitive and oftentimes racist underpinnings of current policy.
“I mean, [disenfranchising felons] doesn’t make sense from a deterrence perspective, it doesn’t make sense from a rehabilitative perspective, from an incapacitative perspective—there’s no logical justification for punishment in this sense,” Uggen says. “The story is incomplete without acknowledging those rifts in the U.S. that brought us to this very unusual position”
Furthermore, distinctions determining which types of criminals are allowed to vote and which aren’t are often arbitrary. “The violent/non-violent distinction is meaningless,” New York City public defender Rebecca Kavanagh says. “The law defines a large number of crimes as violent that involve no actual use of violence. Certain classes of burglary in New York are classified as violent, when someone could have just stolen a package from the lobby of a residential building. Nearly half of all people in prison are classified as violent prisoners, when they wouldn’t fit the public’s idea of a ‘violent’ offender.”
“The point is you can’t cherry-pick who ‘deserves’ to vote,” she adds. “That is not the government’s job, and it’s actually dangerous to allow them to do it when they have a vested interest in the outcome.”
