Archbishop of Canterbury on “The Prisoner as Citizen”

Rowan Williams weighs in on Britain’s debate about inmate voting rights:

If we lose sight of the notion of the prisoner as citizen, any number of things follow from that, and indeed are following from that. … Thus issues around restoration, around responsibility, around developing concepts of empathy and mutuality are all part of what seems to me to be a reasonable working out of what it is to regard the prisoner as a citizen.

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Should Inmates Have the Right to Vote?

That’s been the subject of debate today in Parliament — alas, I wouldn’t count on seeing Congress take up the issue any time soon. Granted, the debate seems to have been mostly a formality to appease the European Court of Human Rights, which issued a ruling critical of the UK’s blanket inmate voting ban in part because it hasn’t been subject to democratic debate in recent memory. (Just had some momentary fun imagining the reaction of, say, House Republicans if the European Court of Human Rights started telling them what to do.)

The Guardian‘s Andrew Sparrow live-blogged the debate. For the most part, the MPs are like the British public: not really all that interested in extending voting rights to “criminals,” just because the ECHR says they should. But here are some highlights from the dissenters:

Lib Dem MP Tom Brake: Prisoners have committed a crime, their punishment is to lose their liberty – that is fair and just. What is then gained by seeking to inflict civil death on them? In what way does it benefit the victim and does it increase the chance of rehabilitation? What is the logic behind this ban? We do not remove prisoners’ access to healthcare or we don’t stop them practising their religion, so why should we impose a blanket ban on a prisoner’s right to vote?

Labour MP Denis MacShane: 1.09pm: Labour’s Denis MacShane is speaking now. He urges MPs not to throw away the tradition of “classic, bleeding-heart, do-gooding British liberalism”. Russia also has a ban on prisoner voting. But in that country criminals get elected, he says.

We are turing our back today on more than a century and a half of prison reform. Someone may enter prison as a criminal. But hopefully they will leave as a future citizen.

You can read Denis MacShane’s full commentary on the issue here at Progressonline. He decries the rise of “populist illiberalism” in the House of Commons. We in America say, Welcome to the club!

As Pundits Parse Election Results, Let’s Not Forget Who Can’t Vote

I suspect I wouldn’t agree with John Boehner on much, but I agreed with the first few lines he said last night: “Frankly this is not a time for celebration, not when one in 10 of our fellow citizens are out of work.” I’d only add that the official unemployment numbers underestimate the true extent of what we might call enforced idleness in our culture since they don’t count the 2 million men and women in prison (and lest you think prisoners are stamping license plates, keep in mind that in many states prison work programs are a thing of the past). As Michelle Alexander observes, the rise of the prison-industrial complex coincided with the near disappearance of urban jobs:

In 1954, black and white youth had about the same rates of employment — with black youth actually having a slightly higher rate of employment. As recently as the early 1970s, about 70 percent of black men held industrial jobs in cities like Chicago. But by the early 1980s, when the drug war was kicking off, that figure had plummeted to less than 27 percent. Indeed, by 1984, the black unemployment rate had nearly quadrupled, while the white rate had increased only marginally. This was not due to a major change in black values or black culture. This dramatic shift was the result of deindustrialization and globalization. Urban factories shut down as our nation transitioned to a service economy. Practically overnight, jobs vanished from inner cities. Hundreds of thousands of black men were suddenly jobless and inner city communities were suffering from economic collapse. Sociologist William Julius Wilson documents this tragedy in his book, When Work Disappears.

The economic collapse of inner-city, black communities could have inspired a national outpouring of compassion and support. … Instead we declared a War on Drugs. …

One of the reasons we remain in denial about the existence of this new caste system and its role in creating and perpetuating racial inequality is because prisoners are not included in unemployment and poverty statistics. Prisoners are treated as though they do not exist. The exclusion of 2 million poor people, most of whom are people of color, from poverty and unemployment data creates the impression of far greater progress in remedying racial inequality than has actually occurred to date.

During the 1990s, for example, during the “economic boom” of the Clinton years, African American men were the only group to experience a steep increase in real joblessness, a development directly traceable to their rapid inclusion in the criminal justice system. In fact, during the 1990s – the best of times for the rest of America – the true jobless rates for noncollege black men (including prisoners) was 42 percent! Standard unemployment data underestimates true black joblessness by as much as 24 percentage points, by failing to count prisoners.

Of course, destructive criminal justice policy is a vicious cycle: felon disenfranchisement laws ensure that those most harmed by mass incarceration are also barred from helping to vote out those politicians who’ve perpetuated it. As the Brennan Center for Justice notes:

Nationwide, 13% of African-American men have lost the right to vote, a rate that is seven times the national average. Given current rates of incarceration, three in ten of the next generation of African-American men across the country can expect to lose the right to vote at some point in their lifetime.

Then again, now that I think about it, those most harmed by mass incarceration may not be people with criminal convictions themselves, but their children. Of course, they can’t vote either.

En Banc Ninth Circuit Upholds Felon Voting Ban in Washington State, Reversing Three-Judge Panel

Thanks to a reader who alerted me that the en banc Ninth Circuit has issued its ruling in Farrakhan v. Gregoire, the Washington inmate voting rights case in which it heard oral arguments just a few weeks ago. The SF Chronicle reports:

A state can prohibit felons from voting even if the ban disproportionately harms minorities, a federal appeals court ruled Thursday in a Washington state case that bolsters a similar law in California.

The Ninth U.S. Circuit Court of Appeals in San Francisco overturned a 2-1 decision by one of its panels in January that struck down the Washington law on the grounds that the state’s criminal justice system was racially biased.

That ruling, the first of its kind in the nation, would have allowed prisoners as well as parolees to vote in Washington. It also could have invalidated laws in the eight other states in the circuit, including California, if courts found that a state’s system of arresting and prosecuting suspects was racially skewed.

Two quick thoughts upon my initial scan of the full ruling (PDF link here):

Tomorrow: Ninth Circuit Oral Argument in Important Felon Voting Rights Case

Tomorrow, Tuesday, Sept. 21, the Ninth Circuit will hear oral argument in Farrakhan v. Gregoire, an important case that could affect the voting rights of prisoners in Alaska, Oregon, Washington, Idaho, Montana, Nevada, California, Hawaii, and Arizona. Back in January, a split Ninth Circuit panel ruled that, in Washington State, “minorities are more likely than whites to be searched, arrested, detained, and ultimately prosecuted,” and that, because “some people becom[e] felons not just because they have committed a crime, but because of their race, then that felon status cannot, under section 2 of the [Voting Rights Act], disqualify felons from voting.” Washington State appealed for en banc review, which is what tomorrow’s proceeding will be.

The proceedings will be broadcast live at 2 PM PST/5 PM EST on C-SPAN 3 available on C-SPAN 3 at a later time.* If you are in or near San Francisco, you could also attend the hearing in person — it’s scheduled for 1:30 PM in the Ninth Circuit courthouse at Mission and 7th. Legal Services for Prisoners with Children and All of Us or None are organizing a group to attend — here’s the flyer (.doc file).

* EDIT: When I first visited the NAACP LDF case page, it suggested there would be a live broadcast, but it looks like they’ve since edited the page to reflect otherwise.

Voting Rights Act Turns 45; Will Felon Disenfranchisement Prove Its Midlife Crisis?

A couple weeks ago, Linda Greenhouse of the New York Times noted a few lawsuits coming through the pipeline that threaten to challenge felon disenfranchisement laws under the Voting Rights Act. It’s a timely topic, since the Voting Rights Act turns 45 this year. As noted by ACSblog, as many as one-third of black men in Alabama and Florida are permanently disenfranchised by criminal convictions. While this is primarily a legal blog, I also study history; and whether or not felon disenfranchisement is found to violate the Voting Rights Act, it certainly has an ugly past. (See the Brennan Center’s report, Jim Crow in New York.) As I’ve noted before (the below reproduces an excerpt from this earlier post):

Felon disenfranchisement laws were typically first passed in the late nineteenth century specifically with the intention of disenfranchising black voters. As Pippa Holloway has demonstrated, in many states this was done in tandem with legislation to expand the definition of “felony” to include petty theft, making it easier to use felony prosecutions as a tool of disenfranchisement. Not coincidentally, in the late nineteenth century, felony conviction rates of black men would rise markedly in the months leading up to elections. A South Carolina Republican complained after the 1884 elections (quoted by Holloway, p. 950):

“Negroes are frequently arraigned before petty magistrates on the most trivial charges of larceny, and a conviction in these petty courts is sufficient to disfranchise them forever. This conviction is readily obtained, and the whole proceedings clearly indicate, in many cases, that the prosecution is merely a pretext to deprive the negro of his vote.”

Supreme Court May Take on Felon Voting Rights

As explained by Lyle Denniston over at SCOTUSblog, the Supreme Court signaled today that it may take on the issue of felon voting rights:

In a brief order, the Justices invited the U.S. Solicitor General to offer views on the case of Simmons, et al., v. Galvin (09-920), a test of Massachusetts’ law prohibiting voting by those who were convicted of serious crimes, while they remain in prison. Once the Court receives that response, for which there is no timetable, the Justices will decide whether to accept the case for review. That is not likely to come until the next Term, starting in October.

In the Massachusetts case, the inmates raise two issues: whether denial of voting rights to imprisoned felons violates federal voting rights law, on the theory that race bias in the criminal justice system sends more minorities to prison so the resulting loss of voting privileges is in effect based on race, and whether it violates the Constitution’s ban on ex post facto laws to impose the loss of voting as an after-the-fact punishment for an earlier crime.

Though the First Circuit rejected both of those arguments, the Ninth Circuit recently ruled that an antidiscrimination challenge to felon disenfranchisement may proceed. That ruling is now being reconsidered by the en banc Ninth Circuit.

Because of Felon Disenfranchisement, One in Four Kentucky Blacks Can’t Vote

The Brennan Center for Justice reports that one in four African-Americans in Kentucky has lost the right to vote, due to “Kentucky’s archaic criminal disenfranchisement law.” Anyone who has ever been committed of a felony in Kentucky is barred from voting for life, unless he/she gets clemency from the governor. (Virginia is the only other state in the union with such a sweeping felon disenfranchisement law.) Note that although African-Americans are only about 8% of the Kentucky population, they make up 1/3 of the incarcerated population in the Bluegrass State. I’ve blogged before on felon disenfranchisement, and as I noted then — and it’s worth repeating — felon disenfranchisement laws were typically first passed in the late nineteenth century specifically with the intention of disenfranchising black voters. As Pippa Holloway has demonstrated, in many states this was done in tandem with legislation to expand the definition of “felony” to include petty theft, making it easier to use felony prosecutions as a tool of disenfranchisement. Not coincidentally, in the late nineteenth century, felony conviction rates of black men would rise markedly in the months leading up to elections. A South Carolina Republican complained after the 1884 elections (quoted by Holloway, p. 950):

“Negroes are frequently arraigned before petty magistrates on the most trivial charges of larceny, and a conviction in these petty courts is sufficient to disfranchise them forever. This conviction is readily obtained, and the whole proceedings clearly indicate, in many cases, that the prosecution is merely a pretext to deprive the negro of his vote.”

Update: See also this Brennan Center post on Congressional hearings today on the proposed Democracy Restoration Act, which would allow all ex-felons to vote in federal elections, regardless of whether they can vote in state elections. For the Brennan Center’s explanation of its position that such a law would be constitutional, see here.

Local Pols to Prisoners: You Live In Our County When It Helps Us, Not When It Helps You

The Prison Policy Initiative’s Prisoners of the Census blog points out that while legislators are happy to count prisoners as residents of their districts come Census time, they’re not legally considered residents for just about any other purpose:

When the Census is not underway and the news cameras are not around, no politician treats the people in local prison cells as residents or constituents.

Most services and benefits that are available only to residents are things that by the nature of their incarceration, people in prison couldn’t take advantage of. We’ll never know if a town with a prison and a residents-only beach would welcome an incarcerated person to swim. Other laws prevent incarcerated people from wandering freely down to the beach. There is, however, one local right that an incarcerated person could exercise if they were a resident of the prison county. The right to divorce in local courts, a right accessible to all county residents, is frequently, if not universally, denied to people whose only tie to the county is incarceration.

When incarcerated people petition the local court for a divorce, they are rejected because they are not residents and instructed to file for divorce in their home county. This is true even if the incarcerated person was married in the prison. (See Washington County Chief Clerk Kathleen M. LaBelle to Troy Johnson, Feb 27, 2003 and March 21, 2003.) In June 2009, Acting Supreme Court Justice Patrick R. McGill in Clinton ruled that despite concluding that the incarcerated person seeking divorce was married at the correctional facility in the county 3 years prior:

“The plaintiff is an inmate at the Clinton Correctional Facility and seeks poor person status… The plaintiff has not established however, that he is a resident of the County of Clinton as the result of any voluntary decision on his part; rather, he is merely present in this county by virtue of his incarceration and may be transferred to a facility in another county at any time.”

NPR’s All Things Considered reported today on the issue of where to count prisoners. For my earlier posts on prisoners and the Census, click here and here.

The Strange Career of Jim Crow (Yankee Edition)

NYU’s Brennan Center for Justice has published an important new report, Jim Crow in New York, tracing the history and ongoing impact of New York’s racially-motivated felon disenfranchisement laws. The report demonstrates that “Jim Crow was not confined to the South” (p. 4) and that he is not dead. The upshot (p. 14):

The mandatory criminal disenfranchisement provision put in place in 1874 is nearly identical to the provision that remains the law in New York today, and it continues to have its intended effects. The current law in New York denies the right to vote to any citizen in prison or on parole. Nearly 80% of those who have lost their right to vote under New York’s law are African-American and Hispanic. Almost half of those disenfranchised are out of prison, living in the community.
…

Restoring voting rights to those who are in the community increases public safety. Many law enforcement and criminal justice officials are speaking out against disenfranchisement because they recognize that bringing people into the political process makes them stakeholders, which helps steer former offenders away from future crimes.

Criminal disenfranchisement laws also harm families and entire communities. Studies show that denying the vote to one person has a ripple effect across families, dramatically decreasing the political power of urban and minority communities.

The New York Times covers the Brennan Center report here; earlier, I blogged here about ongoing litigation over felon disenfranchisement in Washington State. For comparative context, an interesting scholarly article on Southern felon disenfranchisement laws is available for download here, entitled “‘A Chicken-Stealer Shall Lose His Vote’: Disfranchisement for Larceny in the South, 1874-1890,” by Pippa Holloway. And finally, for a broader version of the argument that collateral consequences for felony convictions add up to a new form of legal segregation, see Michelle Alexander’s new book The New Jim Crow.