Why can’t most people in prison vote? Although states display considerable range of policies on the issue of how––if at all––people can vote after being released from institutions or onto parole or probation, the general idea is that the ballot box stops where the bars begin.
But on Tuesday, 6,195 inmates voted in Puerto Rico’s Republican primary—where they comprised one-sixth of the voters who cast their ballots. Their example challenges many of the premises of felon disenfranchisement, and suggests that fears of what would happen if it were repealed are overblown.
The logic behind felony disenfranchisement within prisons and without is so deeply rooted in American ideas of crime and punishment it can seem tautological: Of course prisoners can’t vote; they’re prisoners! However, recent primary elections in Vermont, Maine, and Puerto Rico challenge that common knowledge and provide a glimpse of what the country’s voting process might look like if the franchise was extended to those serving time.
The origins of disenfranchisement as a vehicle of American punishment are likely traceable to some form of the classical notion of a “civil death.” For the Greeks, the punishment of civil death was akin to capital punishment—a complete extinguishing of the civil rights that Greeks believed constituted personhood, including suffrage, landownership, and the right to file lawsuits. English common law borrowed the Greek concept, and civil death was long viewed as a suitable punishment for felony offenses.
But civil death as a formal punishment in the American colonies differed from the English system on which it was based, and from the punishments that would later evolve. Civil death was initially only adopted in America for a very small number of felonies, the most common of which were violations directly connected to voting—for example, fraud or bribery. This paralleled both an expansion of crimes considered felonies and a decoupling of felony punishment from capital punishment. The use of long-term imprisonment, instead of corporal or capital punishment, only came about in fits and starts.
Jeff Manza and Christopher Uggen’s Locked Out: Felon Disenfranchisement and American Democracy details how early incarceration’s link to indebtedness and poverty dovetailed with widespread property and tax suffrage requirements to create a de facto system of disenfranchisement. Paupers or debtors were often denied the vote through their lack of property or their inability to pay poll taxes, and both were likely to face prison time for felonies, especially if they could not afford fines. Both incarceration and civil death were largely threats faced only by the lower classes, a correlation that turned causal as the prison system was codified and American mass incarceration was born.
The modernization of that mass-incarceration system came, perhaps unsurprisingly, with the entrance of former slaves into the electorate during Reconstruction. After the Fifteenth Amendment, civil death and incarceration became used as formal punishments for a staggeringly broad set of infractions. They were key tools for the suppression of black voters and the gradual erosion of landholding and civil rights in southern states, tools that helped maintain racial power structures in states that had seen strong black-voter turnout immediately after the franchise was granted. This felon disenfranchisement extended broadly in many states, applying not just during incarceration, but extending into parole and probation in some states and indefinitely into post-incarceration life in others.
The sweeping course of felon disenfranchisement was so absolute even outside of the South that only four states––Vermont, Maine, Massachusetts, and Utah––kept the franchise for incarcerated people until recent years. A constitutional amendment in Utah ended that practice in 1998. Massachusetts followed in 2000, in a decision that sparked key debates over the legality of civil death. Today, about 5.85 million incarcerated and nonincarcerated people with felonies are banned from casting ballots. And for the incarcerated portion of that number, the logic of civil death is rarely questioned.
Even several arguments in favor of re-enfranchising nonincarcerated people with felonies implicitly defend civil death as a suitable punishment for the incarcerated. As Maryland’s General Assembly overrode a veto by Governor Larry Hogan to extend voting rights to people serving parole or probation, many of its members cited either a desire to better fold nonincarcerated people back into their communities, or a belief that nonincarcerated people were due certain rights. Even these reformers largely did not question prison’s status as an automatic no-vote zone. Although several states have loosened disenfranchisement for nonincarcerated people with felonies over the past two decades, only one, New Hampshire, has granted voting rights to those in prisons. That decision was overturned by the state supreme court in a matter of months.
Puerto Rico, which has a larger population than several states and more incarcerated people than 15 states, provides a contrary example. Turnout in the March 6 Republican Primary plummeted from 2012’s 129,000 Republican votes to just over 40,000 this year, a party spokesperson in the territory confirmed. A number of factors, including last-minute changes and funding cuts driven by Puerto Rico’s financial crisis, likely reduced turnout. But of those who did vote, the Republican Party of Puerto Rico confirmed that 6,195 were actually inmates in the island’s 24 correctional facilities.
That turnout represents over half of all of Puerto Rico’s incarcerated people. In a primary that combined unusual national importance and a lack of local participation, inmates provided the most engaged voting group. Republican Party of Puerto Rico spokesperson Kevin Romero-Díaz indicated to me that voting patterns within prisons were similar to those of nonincarcerated people on the island, discounting one major defense of civil death––that prisoners are deficient in responsibility or decision-making as compared to other citizens.
Puerto Rico’s refusal to impose civil death has limited national consequences, because all of its voters are broadly disenfranchised, and unable to vote in federal elections. But Vermont and Maine offer similar examples. A key legal factor in defense of civil death has been the idea that felons have broken the social contract and have forfeited their rights in participating in it. Thus, civil death is considered a reflexive defense of the social contract and a fitting punishment.
However, that reasoning falls doubly short. Even death-row inmates retain a broad array of constitutional rights, including access to due process, the right to sue, and the right to appeal. Why is the right to vote excluded? Also, the social contract may not need civil death to defend it. The social fabric of Vermont and Maine, where felons have and will vote in general elections, can hardly be considered to have been irreparably damaged by their participation.
Perhaps it’s not coincidence that Vermont and Maine are the two whitest states in the country. They’re comparatively immune to the racialization of crime policy and rhetoric that dominates conversations elsewhere. In states where the social contract has always been interpreted through a lens of racial tension and where criminalization and race have often been intertwined, it may be harder to challenge policies that have been accepted as deeply as self-evident truths. Or, in plainer language, some people are less enthusiastic about the idea of minority inmates having meaningful participation in elections than they might be if most inmates were white.
International comparative analyses simply reinforce the lessons of Vermont, Maine, and Puerto Rico. Prisoners in dozens of countries, including Canada, Germany, South Africa, and Israel, are allowed to vote in all elections—without significant problems.
The sky hasn’t fallen in Vermont or Maine either. Inmates in Puerto Rico may be playing a serious role in advocating for national assistance for the island’s troubles, voting at a time when it has become more difficult for everyone else. Perhaps the idea of prisoners as stable voting populations, or prisons as reliable polling centers, could provide an example for states on the mainland struggling with declining turnout. At the very least, Vermont, Maine, and Puerto Rico should alleviate some fears about a possible post-disenfranchisement future in the United States. The death of civil death doesn’t kill democracy.