Prisoners and American democracy

If you’re interested in voting rights and the regular ebb and flow of democracy, don’t miss this speech to a conference at Georgetown University on Tuesday by the United States attorney-general, Eric Holder.

Holder’s topic is criminal justice reform; he talks about increasing the “emphasis on proven diversion, rehabilitation, and reentry programs” and about using prosecutors’ discretion so as to avoid unnecessarily severe sentencing outcomes, as well as supporting legislative reform of sentencing laws. And he stresses the need “to advance proven strategies to help formerly incarcerated people successfully rejoin their communities.”

That’s what leads to his main point:

I’ve ordered our law enforcement components, and asked state Attorneys General, to reconsider policies that impose overly burdensome collateral consequences on formerly incarcerated individuals without meaningfully improving public safety.

What sort of consequences? Most notably, in Holder’s words, “the single most basic right of American citizenship – the right to vote.”

A report on the speech in the New York Times takes up the story:

Nearly every state prohibits inmates from voting while in prison. In four of them — Florida, Iowa, Kentucky and Virginia — felons are barred from the polls for life unless they receive clemency from the governor. The rest of the country’s laws vary. Some state restore voting rights after a prison sentence is complete. Others require a waiting period. Some have complicated processes for felons to re-register to vote.

Although Holder carefully avoids the politics of the issue – and in fact makes mention of the fact that Republican senator Rand Paul is an opponent of disenfranchisement as well – no-one disputes that this has a large partisan impact. Prisoners and former prisoners are disproportionately poor and black, and overwhelmingly likely to vote Democrat.

I don’t for a moment doubt Holder’s genuine conviction here: the non-political reasons that he advances are true and important. I admire his commitment to “the notion that the free exercise of our fundamental rights should never be subject to politics, or geography, or the lingering effects of flawed and unjust policies.” But it’s hard to believe that he would be such a passionate advocate for it if he thought that the result would be politically harmful to his party.

Conversely, the policies that Holder is attacking are generally kept in place by Republicans, for their own political gain. Nor is this confined to the US: the Howard government in Australia legislated to deprive all prisoners of the vote, although this was struck down by the high court in relation to sentences of less than three years. An earlier Canadian decision was even more sweeping.

In Britain, there is an ongoing dispute between the government and the European court of human rights over the issue of prisoners voting.

But no other developed democracy has the sort of blanket disenfranchisement of prisoners even after their release that is found across much of the US. Holder points to signs of “a trend in the right direction”, but there is clearly a long way to go. Some states have even moved backwards.

The federal government is essentially powerless in this area, since franchise – even for federal elections – is a state responsibility. All the attorney-general can really offer is moral exhortation, and while he may succeed in motivating some of his party colleagues, he is unlikely to convince anyone who is opposed (whether from principle or from expediency) to the idea.

Nonetheless, Holder’s words should be listened to. Restoring the civil rights of prisoners and former prisoners would not just address the “alienation and disillusionment between these individuals and the communities.” It would also remove a serious blight on democracy.


5 thoughts on “Prisoners and American democracy

  1. Strictly speaking there is no “right to vote” in the U.S. constitution, except for prohibiting certain forms of legal discrimination in establishing qualifications for suffrage in the 14th, 15th, 19th, 24th, and 26th amendments. Voting is better regarded as a privilege extended by the States, and thus can be modified or revoked for legal reasons.


  2. Thanks, JKUU – I think that’s quite correct. On the other hand, there’s no mention of such a right in the Australian constitution either, yet the high court was still willing to enforce one in Roach v Electoral Commissioner.


  3. I’m not sure your take on voting “rights” in the Australian constitution is correct, Mr. Richardson. Section 7 clearly states “The Senate shall be […] directly chosen by the people of the State, voting, […] as one electorate.” (Some text removed for clarity.) The equivalent statement regarding the House again says “directly chosen by the people,” but does not mention “voting.” Taken together, however, isn’t at least an implied right to vote expressed in the Australian constitution? Of course, exactly who has any such right is not mentioned.


  4. Sure, I don’t disagree with the high court’s reasoning on that – I think it’s a good case of an implied right. It’s just that the language in the US constitution is much the same: Article I, s. 2 for example says “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” The difference is that in the US the states are given much more explicit control over who gets to vote; I think our constitutional drafters did a better job there.


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