In his brilliant new forthcoming book, “Inferno,” Columbia Law School professor Robert Ferguson tries to explore the uniquely American penchant for punishment. It is not just a desire for retribution or revenge upon those who commit crime. It is not just a lack of empathy for the reasons why some break the law. It is not just a moral judgment or a righteous denunciation of the fallibilities of our fellow human beings. It is all those things, sprinkled together with religious and racial divisions, topped off with a dash of fear, which has made the United States in the 21st century by far the most punitive society on the face of the earth.
Some of the most indefensible manifestations of this zeal to punish, this refusal to forgive, are felony disenfranchisement laws, which have stripped millions of Americans of the right to vote. These laws say to an offender: Even after you have served time in a cell for your crime, even though we will permit you to walk the streets free, you may never again live in society on equal terms with your fellow citizens. You will always have to wear a badge of dishonor even as you try to rebuild your life. For some Americans, no matter what your crime, you will have a life sentence of sorts precluding you from participating in the political and legal life of your nation.
Now, we can and we should have a debate in America today about what these policies do other than further divide Americans between haves and have-nots. It is worth pushing those who still defend these laws to offer 21st century justifications for what essentially are dubious 19th century racial policies. But there is no longer any room for dispute that these rules have a devastating impact upon the essence of our democratic system. Sen. Rand Paul, the Republican from Kentucky, is rarely right about anything having to do with voting rights. But he is as right as rain when he says that the issue of felony disenfranchisement dwarfs other voter suppression issues.
All of this is context to the historic speech Attorney General Eric Holder made Tuesday at the Georgetown Law Center. As a matter of fact, what the attorney general said was unassailable. As a matter of politics, the speech was honest — it made me think immediately of Michael Kinsley’s old saw about how a politician makes a gaffe only when he tells the truth. And as a matter of law it was truly courageous, because what the attorney general said, and did, was to call out to the shadows, to those in and out of power who nurture and defend this massive disenfranchisement, that they have run out of arguments and perhaps as well run out of time. From Holder’s speech:
Across this country today, an estimated 5.8 million Americans – 5.8 million of our fellow citizens – are prohibited from voting because of current or previous felony convictions. That’s more than the individual populations of 31 U.S. states. And although well over a century has passed since post-Reconstruction states used these measures to strip African Americans of their most fundamental rights, the impact of felony disenfranchisement on modern communities of color remains both disproportionate and unacceptable.
Throughout America, 2.2 million black citizens – or nearly one in 13 African-American adults – are banned from voting because of these laws. In three states – Florida, Kentucky, and Virginia – that ratio climbs to one in five. These individuals and many others – of all races, backgrounds, and walks of life – are routinely denied the chance to participate in the most fundamental and important act of self-governance. They are prevented from exercising an essential right. And they are locked out from achieving complete rehabilitation and reentry – even after they’ve served the time, and paid the fines, that they owe.
Fortunately – despite unfortunate steps backward in a few jurisdictions, and thanks to the leadership of policymakers from both parties and criminal justice professionals like you – in recent years we have begun to see a trend in the right direction. Since 1997, a total of 23 states – including Nebraska, Nevada, Texas, and Washington State – have enacted meaningful reforms. In Virginia, just last year, former Governor McDonnell adopted a policy that began to automatically restore the voting rights of former prisoners with non-violent felony convictions.
These are positive developments. But many of these changes are incremental in nature. They stop well short of confronting this problem head-on. And although we can be encouraged by the promising indications we’ve seen, a great deal of work remains to be done. Given what is at stake, the time for incrementalism is clearly over.
Eleven states continue to restrict voting rights, to varying degrees, even after a person has served his or her prison sentence and is no longer on probation or parole – including the State of Florida, where approximately 10 percent of the entire population is disenfranchised as a result. In Mississippi, roughly 8 percent of the population cannot vote because of past involvement with the criminal justice system. In Iowa, action by the governor in 2011 caused the state to move from automatic restoration of rights – following the completion of a criminal sentence – to an arduous process that requires direct intervention by the governor himself in every individual case. It’s no surprise that, two years after this change – of the 8,000 people who had completed their sentences during that governor’s tenure – voting rights had been restored to fewer than 12.
That’s moving backwards – not forward. It is unwise, it is unjust, and it is not in keeping with our democratic values. These laws deserve to be not only reconsidered, but repealed. And so today, I call upon state leaders and other elected officials across the country to pass clear and consistent reforms to restore the voting rights of all who have served their terms in prison or jail, completed their parole or probation, and paid their fines.
Even if state lawmakers around the country were to enlighten themselves to the attorney general’s view, it would not bring back the vote to every ex-felon, the Brennan Center’s Vishal Agraharkar told me this week. “All of those citizens should have the responsibility and the right to vote.” The good news is that some states already go further in restoring voting rights than even Holder has suggested. But his remarks are remarkable coming from an attorney general — unthinkable, really, even as recently as five years ago.
These laws are about race and class. It is about the pernicious impact of mass incarceration even when the incarceration ends — the long arm of correctional control reaches out sometimes for decades after prison. They are about the perpetuation of a caste system in this country that is unacknowledged by the hundreds of millions of Americans unaffected by it. They diminish our democracy, from one generation to the next, by depriving parents of the right to vote on the future their children will inhabit — a cycle that has undermined our nation for 150 years. The punch line, Professor Ferguson might suggest, is that by continuing to punish these millions of Americans long after they have paid a price for their crimes we are really just punishing ourselves.