Let the Incarcerated Vote

The bodies of people in America’s prisons are counted in the design of our political infrastructure, but their voices are not.

For the first time this year, pretrial detainees in a Cook County jail can participate in early voting in a general election. (Nuccio DiNuzzo / Getty)

On the morning of Election Day in 2018, I went to vote at my local polling site in Maryland and then drove down to the D.C. Central Detention Facility, where I taught creative-writing workshops with a group of 18-to-24-year-old incarcerated young men. I parked, turned off the engine, and felt the soft vibration of the car come to a stop. I sat there and looked down at the I VOTED sticker in my hand—its adhesive clinging to my finger, its waxy paper catching the light through my windows.

I had been teaching in jails and prisons for a few years by then, and had started to become more intimately struck by all the ways in which incarceration spaces strip away a person’s agency. What had always been clear on an abstract level became more concrete the more time I spent working inside these facilities. It wasn’t simply that people were—literally—caged; it was that they had lost a long list of small privileges that people on the outside often take for granted: the choice of what food you will eat, what clothes you will wear, what books you are allowed to read, which loved ones to use your money to call. But something in that moment, my clothes still smelling of the elementary-school cafeteria where I had just cast my ballot, in what felt like the most consequential midterm election of my lifetime, laid bare the indignity of millions of incarcerated people being prevented from participating in our elections.

The bodies of incarcerated people are counted in the way we build our political infrastructure, but their voices are not. Since 1790—the year the census was first conducted—the federal government has counted incarcerated people as part of the geographic population where they are being held, rather than at the address of their last residence. In practice, this often means that predominantly white towns in rural areas throughout the country have their population numbers artificially expanded because of the bodies of the disproportionately Black and Hispanic people who are incarcerated there.

So many states use this as a mechanism by which to seize additional political power in certain areas, intentionally drawing district lines around prisons to boost that district’s numbers, that it has acquired its own name: prison gerrymandering. And because districts are drawn to have approximately the same populations, this means that non-incarcerated people in districts with large prison populations have votes that carry more weight than those of their counterparts in districts that don’t have such a facility. What’s more, if people are part of a legislative district but—by design—cannot vote in that district, then the elected representatives from that district have little incentive to serve their needs. If you are in prison and you are concerned about the conditions there, or about the way you are being treated by correctional officers, or about whether the Department of Corrections is doing enough to protect you from COVID-19, in the majority of states across the country you have no vote to hold elected representatives on the local, state, or federal levels accountable. Nine states have passed legislation to end prison gerrymandering, but the rest still allow the practice.

Since the Black Lives Matter movement began several years ago, more people have become aware of the issues that render our system of mass criminalization and mass imprisonment systemically unjust. More Americans see that the experience of poverty is deeply interwoven with the chance that someone will find themselves entangled in the criminal legal system. As the civil-rights attorney Bryan Stevenson puts it, “We have a system of justice that treats you better if you’re rich and guilty than if you’re poor and innocent.” They have learned that the system that punishes by class is also driven by racism—that, as a 2018 study showed, even Black men coming from wealthy families are more likely to be incarcerated than lower-middle-class whites. As a New York Times article covering the study put it, “Black men raised in the top 1 percent—by millionaires—were as likely to be incarcerated as white men raised in households earning about $36,000.” They might also have become aware that while Black and white people use marijuana at similar rates, Black people are 3.6 times more likely to be arrested for pot nationwide, and almost 10 times more likely in certain states.

It may seem strange that some of the same people who have come to accept the deeply entrenched realities of our carceral state would also support using this system to take away people’s most basic right. You cannot in one breath say that the system of mass incarceration is systemically broken and unjust, and then in the next breath use the existence of that same system to justify keeping the millions of people inside of it disenfranchised.

But only two states, Maine and Vermont, currently allow people in state prison to vote. They are also the whitest states in the country.

Black people are disproportionately represented among our country’s incarcerated population. As a result of decades of political, social, and cultural messaging, the notions of criminality and blackness have become deeply interwoven. As the scholar Khalil Gibran Muhammad wrote in his book Condemnation of Blackness, “At the dawn of the twentieth century, in a rapidly industrializing, urbanizing, and demographically shifting America, blackness was refashioned through crime statistics. It became a more stable racial category in opposition to whiteness through racial criminalization.”

The sense that incarcerated people should not be able to vote is thus tied to a racialized sense of undeservedness: Black people are criminal. Criminals don’t deserve to vote. That logic is often used by people who have a specific interest in preventing Black people from exercising their right to the franchise, for fear of what it might do to shift the dynamics of electoral politics. For some, however, it is not a matter of electoral strategy, but of racism. As Muhammad wrote, “Black criminality had become the most significant and durable signifier of black inferiority in white people’s minds since the dawn of Jim Crow.”

Abd’Allah Lateef, a senior strategist and racial-equity specialist for the Campaign for the Fair Sentencing of Youth, is working to change that. (I’ve donated to, and worked with, the group in the past.) “Taxation without representation was the fundamental axiom that gave birth to the American revolution,” he wrote to me. “How dare we now suggest that incarcerated folks be unceremoniously stripped of the very ideal that animated the American experience. And to do so makes it unequivocally clear [that] there is a direct line from the Black experience with slavery and mass incarceration that is at least partly rooted in the deliberate disenfranchisement of prisoners.”

This year is the first time that Lateef has been allowed to vote in a general presidential election. He was 17 when he was arrested, too young to vote, and then spent more than 30 years in prison, before being released in 2017. I asked him what it felt like to cast his vote for a presidential candidate for the first time. “It really solidified the fact that I am here, that I am part of the social fabric,” he said. “The way I felt was validated, seen, and heard in a real way.”

But Lateef also pointed out that, as appreciative as he is of the opportunity to vote now, there is nothing inherent in his current condition that makes him more suited to vote than when he was incarcerated. “I was and continue to be the same person that I was not just five years ago, 10 years ago, 15, 20 years ago,” he said. “In terms of being able to avail myself of a political process and make decisions predicated on my interest and that of my community and my family, I certainly had that capacity years and decades ago.”

Lateef told me that he is not an exception, and that prisons across the country are full of people who follow and are engaged in the political process while incarcerated, even if they don’t have access to the most fundamental political right. They want to be able to vote not only to hold the system keeping them locked in cages accountable, but also to be part of the democratic process that shapes the lives of their families, their children, and their communities. People in prison want to be able to vote to decide who is going to sit on the school board in the districts where their children go to school. They want to be able to vote for the city-council members who shape which social services are prioritized in their neighborhoods. They want to be able to vote for the representative who will help their parents get the health care they need. Many follow these issues closely, like Lateef did while he was in prison, but are unable to make their voices heard with their vote. “It isn’t that people are ill-equipped on the inside,” he told me, “it’s simply that they have been stripped and deprived of the ability to access and exercise their vote.”

What Lateef is describing is the phenomenon scholars refer to as civil death, the notion that, upon being incarcerated, people lose all of their civil rights. As the scholar Caleb Smith writes in his book The Prison and the American Imagination, in the American system “the incarcerated convict retains his ‘natural life’––his heart beats on, he labors, and he consumes––but he has lost the higher, more abstract, civil life that made him fully human in the eyes of the law.”

I asked Lateef what sort of impact being given the right to vote would have on the people he knew in prison, and he said it would immediately enhance their sense of self-worth and agency, and would make them feel more connected to a world—and to communities—that they had been taken away from. “And that’s huge in and of itself in a place that is designed to demoralize and humiliate the human spirit,” he said.

The movement to restore the franchise to incarcerated people has made progress over the past few years, in part because Bernie Sanders’s presidential platform included an endorsement of the unequivocal right for incarcerated people to vote; he was the only candidate in the Democratic primary to hold that position. Most of the progress, though, is due to the tireless work of the incarcerated and formerly incarcerated, along with their families, in grassroots movements across the country.

While people in prison lose the right to vote in all but two states, most of the roughly 746,000 people who are in jail on any given day still have the right to vote, because they are being held pre-trial and have not yet been convicted of any crime. Still, as the Marshall Project has reported, voting inside jails is rare, as most of them do not actively work to register people being held there, and misinformation about felony disenfranchisement leads many in prison to think that they are not eligible. Some believe that if they vote, they might be breaking the law and could end up with even longer sentences if they are convicted. The D.C. jail in which I teach now allows people being held for felonies to vote, following legislation that passed this summer. I have not been able to go inside the jail since the pandemic began, but based on our conversations on politics over the years, I know this means a great deal to many of the people being held there.

In 1958, the Supreme Court ruled in Trop v. Dulles that a person could not lose their citizenship by committing a crime. In the words of Justice Earl Warren, “Citizenship is not a right that expires upon misbehavior.”

Warren, though he was not speaking in the context of voting rights, was correct. And his assertion remains true today. Our ability to participate fully in the franchise should not be contingent on whether we fall asleep in our homes or in a cell block. Incarcerated people are not the only ones who lose out when they are prevented from voting. “What’s lost,” as Lateef put it, “is a bit of us.”