Law in Contemporary Society

Why Are There No Polling Stations in Prisons?

-- By TonbaraEkiyor - 01 Jun 2015


Over 2.4 million Americans cannot vote during elections because they are incarcerated. The reason this fundamental right is denied to such a large number of people is not readily apparent once probed. In writing this paper the initial reaction of the few people I asked why they thought prisoners could not vote was visceral. Nevertheless, our societies have slowly moved away from denying people their rights merely because we have an instinctual aversion to granting them those rights. At the outset, it is necessary to pre-empt any challenges that voting is a privilege by highlighting that voting is a fundamental right that is addressed in Article II of the constitution in addition to the 15th, 19th, 24th and 26th amendments. So why does the US deny prisoners the right to vote?

Restrictions on Civil Liberties

The United States imprisons a large proportion of its population for three broad reasons: rehabilitation, retribution and deterrence. Whether these goals are being achieved has been debated for decades . The state restricts their right to liberty as punishment for violating the law. The justification for the restriction of this right is often in tandem with the broad reasons given for incarceration above. It boils down to the assumption that liberty is a right that the prisoner values. As such, taking away their privacy- bodily autonomy, freedom to interact as they wish - serves as a form of retribution and deters future offenders from committing the crimes that yield such punishments. That the denial of the right to liberty achieves the rehabilitative goal is a more tenuous argument. But the thinking is that convicted felons are restricted access to the public, ostensibly to protect the public from their deviant ways until they have been rehabilitated.

The restriction of the right to vote cannot be justified as serving the three broad reasons for incarceration given above. The assumption that the right to vote is of great value to prospective offenders has to be established for the restriction of the right to have a retributive and deterrent effect. While the right to vote is one that was struggled for by African- Americans- the largest proportion of people incarcerated in the US- there is little evidence to indicate that this is a right that prospective offenders hold dear. Thus the denial of the right does not have the intended effect.

It is only fair to raise the issue that if it is not a right that prospective offenders value greatly, then there is no harm if they are denied that right. However, the measure for whether or not an individual or a group of individuals should be granted or denied a right is not the extent to which they value it. The right to vote is one that the constitution is interpreted as granting and thus cannot be arbitrarily denied. The right to liberty is restricted as a logical means to achieving the goals of incarceration. The same cannot be said for the restriction of the right to vote.

The Uninformed Citizen Argument

One argument for denying inmates the right to vote worth considering is that prisoners are estranged from the public sphere, thus are unable to make informed decisions. This is an important consideration, as it is in the interest of society for there to be some semblance of educated voting. The concern is that because inmates do not have access to the candidates for political office in the same way the rest of the voting public do, they should not be allowed to influence the voting result. One response to this is that there are a number of communities that voluntarily exclude themselves from society, and thus do not have the same access to politicians everyone else does, the Amish are an example, yet they are not disenfranchised because of this. Another would be to simply make prisoners informed of the candidates for political office by giving them access to debates or simply handing out pamphlets in prisons.

In class discussions, we highlighted the attitude of the public to murderers. We talked about the way society separates itself, and condemns their actions by putting them away. We recognized the fact that doing so is an exercise in identifying the other. Similarly, the denial of the right to vote is a means of separating ourselves from offenders. The thinking is that upstanding citizens are the kind of people that vote, not prisoners. However, this is also an acknowledgement of the sacredness of the right to vote, and underlines the fact that arbitrarily denying this right is a violation of the constitution.

In the Courts

In Hayden v. Pataki., 449 F.3d 305 (2nd Cir. 2006) the court dismissed claims by inmates and parolees that the denial of the right to vote by a New York statute was in violation of the Voting Rights Act (VRA). The court held that the VRA applied to the denial of the right to vote on the basis of race and color, thus did not apply to the plaintiffs. While in Farrakhan v. Gregoire., 590 F.3d 989 (9th Cir 2010), the Court of Appeals initially upheld convicted felons’ claim that Washington’s felon disenfranchisement laws prohibited the right to vote on account of race. The court sitting en banc later overturned this finding, stating that the VRA challenge to felon disenfranchisement laws require intentional discrimination in the criminal justice system.

These cases are setting a precedent for the assertion that if a link to racially discriminate practices can be made, then the denial of the right to vote to prisoners will be deemed unconstitutional. However, it is necessary that there is a recognition of this right as fundamental independently of the VRA.

Why would it not be sufficient to say that the state can make loss of the right to vote, like loss of other liberty interests, punishment for crime? Why if the state can deprive people of other fundamental rights can it not also deprive of the right to vote?

Once the judgment has been satisfied in other respects, continued deprivation of the right to vote may be questionable, though it is hard given section 2 of the fourteenth amendment to assert that this is a constitutional issue. Given the historical record on the subject (including the centuries-long rule that felons are legally dead after judgment), it is also hard to see how depriving felons under imprisonment of their right to vote can be "on account" of their race or previous condition of servitude under the terms of the Fifteenth Amendment.

If the point of the essay is to seek answers to legal questions, these are the ones it should consider. If the point was a rhetorical defense of allowing prisoners to vote, shouldn't the argument be about why the state should seek to allow them to vote, not whether it has the power to deny the vote? The latter seems undeniably poor ground on which to make a stand.

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r4 - 29 Jun 2015 - 21:55:08 - MarkDrake
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