November 24, 2003 - The Nation Magazine

The Last Disenfranchised Class

by Rebecca Perl

It was 1986, and Jan Warren knew she had to do something to change her life. She wanted to get home to California where her father had just died and left her a produce business. But Warren, 35, was stuck on the East Coast with no money, in a dead-end relationship and pregnant. Desperate, she made a mistake: She agreed to sell cocaine for her cousin. It was the only time Warren had ever sold drugs, and it turned out to be a police sting.

Under strict New York drug laws, Warren was given fifteen years to life. And one sunny Memorial Day in the prison yard, Warren suddenly understood that serving time in prison was going to cost her more than her physical freedom. "I knew people who had died in the wars. I thought of them on Memorial Day--that's what you were supposed to do," said Warren, now 52. "But on that holiday, I realized that something was missing. It was the American flag. It was gone. I couldn't see it. And that should have been my first clue. If you saw the flag you might think of yourself as a citizen with certain inalienable rights, and the truth is, that's wrong."

Warren added, "I didn't realize that part of the whole prison system is set up to alienate you from society, because now I can't vote. And without being able to vote, what politician is going to say, 'Well, Ms. Warren, you have a very good point and because you're one of my constituents I'm going to listen to you'?"

Eventually Warren, a registered Republican, wrote to New York Governor George Pataki after serving six years, and she was later granted clemency--but still not the right to vote. New York laws say any felon in prison or on parole loses that right, and Warren may be on parole for life.

Tough drug laws are one of the primary reasons women like Warren end up in prison. Drug laws are also one of the principal reasons that today one in twenty men can expect to spend part of his life in prison. And an exploding prison population means nearly 5 million people are unable to vote because they have been convicted of a felony--defined as any crime that carries a sentence of a year or more in prison. Today felons and former felons are the single largest group currently barred by law from voting in the United States.

Voting rights are left up to the states, so the laws vary. Only Maine and Vermont allow prisoners to vote. Most states take the right away from those in prison and also those on parole or probation. While most states also return the right to vote once the terms of a sentence have been completed, thirteen states, five of them in the South, take voting rights away for life--a punishment extremely rare in the rest of the Western world. As a result, there are now more ex-prisoners than prisoners in the United States who can't vote.

Civil rights advocates predict that voting rights for prisoners and ex-prisoners will be the next US suffrage movement, as lawyers, prison advocates, voting rights groups and foundations have recently begun to join forces and take up the cause. "The United States, this great democracy, was founded as this experiment, and it was a great experiment. But it was a very limited one as well," says Marc Mauer of the Sentencing Project, a prison advocacy group in Washington, DC. "At the time the country was founded, essentially a group of wealthy white men granted themselves the right to vote." Mauer says that today, we look back on that decision with some degree of national embarrassment, and our history since then has been one of trying to open the franchise.

But if history offers any lessons, it won't be an easy fight or a quick one. That's because, according to some sociologists who study disenfranchisement, the removal of barriers for felons could affect the political balance of power in this country. For one thing, felons who get the chance vote overwhelmingly Democratic, and with a Republican administration in power, there is little chance for change on a national scale.

Disenfranchisement laws can be traced back to ancient Greece and Rome. In Renaissance Europe, people who committed certain crimes were condemned to a "civil death," and lost their civil rights. In the United States, many states passed disenfranchisement laws in the years just after Reconstruction, when blacks were first gaining the right to vote. At the time lawmakers justified the laws by invoking what one Alabama politician called the "menace of negro domination." "This was at the exact same historical period when poll taxes and literacy requirements were being adopted by many Southern legislatures," says Mauer. "All with the express purpose of disenfranchising black voters, so that one Southern legislator at the time referred to the felon disenfranchisement laws as almost an insurance policy." Today the laws are justified on race-neutral grounds, but their discriminatory impact remains.

Also, American laws seem to be out of sync with those of other countries in their severity. Prisoners never lose their right to vote in eighteen countries across Europe, including Ireland, Spain, Switzerland and Poland. In South Africa, prisoners helped to elect one of their own--Nelson Mandela. And last year the Supreme Court of Canada ruled that denying prisoners the vote is "anti-democratic" and "denies the basis of democratic legitimacy."

In the United States the laws affect large numbers of people, and black people in particular. Across the country, one in eight African-American men is barred from voting. In Florida and Alabama, it's one in three. Sometimes felon disenfranchisement laws take the vote away from whole communities. In New York State, 90 percent of prisoners serve their time upstate, yet overwhelmingly these prisoners come from just seven poor, minority neighborhoods in New York City.

Jazz Hayden is from one of those neighborhoods: Harlem. He's one of 131,000 prisoners or parolees in New York State who can't vote because of a felony conviction. As Hayden explains it, just about everyone in Harlem has a brother or a nephew or a cousin who's locked up. Though blacks make up only 15 percent of the state population, they make up more than half the prison population--a situation that is repeated across the country. Because whites are more likely to be offered plea bargains and alternative sentences, they are less likely to spend time in prison and lose the right to vote, according to the New York Civil Liberties Union.

In the 1970s Hayden prospered in Harlem. He owned a nightclub and a building on the block where he grew up. But in summer 1987, Hayden was arrested for stabbing and killing a sanitation worker during a fight and was sentenced to prison, where he spent the next thirteen years. There, Hayden had a lot of time to think and read. He got a master's degree in theology. He also filed a lawsuit against the state on behalf of prisoners in New York. "The vote in America represents power because come Election Day, when I go to the voting booth and Bill Gates goes to the voting booth all of us have one vote," he says. "George Bush, Bill Gates and myself--and it's probably the only time in America that we're all equal. And to deny me that right is to say that I'm not a citizen. I'm right back in the same situation that my ancestors were in."

Today the NAACP Legal Defense Fund has taken the lead on challenging the voting restriction in court. It reviewed the suit Hayden filed in prison and expanded its scope; in January Hayden's suit became Hayden v. Pataki, a class action on behalf of black and Latino prisoners and parolees in New York, and the handful of communities they come from. The suit charges that the law is discriminatory and unconstitutional. "This really shouldn't be viewed any differently than any other struggle for suffrage in this country," says Janai Nelson, a lawyer on the case. "We excluded women from voting for a long time. We excluded non-property holders, we excluded other minorities, despite the fact that this is really the bedrock of our democracy."

But not everyone buys Nelson's argument. That includes many crime victims and their relatives. "I don't want these people having access to making changes in my life; they have already done that," says Janice Grieshaber, whose daughter Jenna was murdered in Albany in 1997 one week before she was to graduate from nursing school. Grieshaber says it's really pretty simple: People who don't follow the laws shouldn't have a say in making them.

Yet even Grieshaber makes a distinction between the rights of violent and nonviolent criminals. As she sees it, someone locked up because of drugs or a white-collar crime is a more sympathetic figure than, say, someone convicted of manslaughter. And some politicians and criminologists agree. Chris Uggen, a sociologist at the University of Minnesota who studies felon disenfranchisement, says those fighting for felons' right to vote would have a better chance of success if they focused on nonviolent criminals. But Nelson remains unswayed. "This is what it means to be an American," she says. "Regardless of whether or not you're a good American, a law-abiding American, a PC American, really the right to vote does not vary based on our different ideas about what we would ideally like you to be as a person in this country."

Others remain more pragmatic. Legislation introduced by Congressman John Conyers, a Michigan Democrat, seeks (so far unsuccessfully) to grant the vote to ex-prisoners. An election reform commission on which sit former Presidents Jimmy Carter and Gerald Ford, set up after the Florida debacle in 2000, made a similar suggestion. "A strong case can be made in favor of restoration of voting rights when an individual has completed the full sentence...including any period of probation or parole," reads their 2001 report. Senator Harry Reid, a Nevada Demo-crat, tried to make Carter's suggestion a reality when he offered an amendment to an election reform package passed last year. The amendment failed.

Nevertheless, most Americans are in favor of such a move; a poll taken last year showed that 80 percent of Americans support restoring the vote to ex-felons who have completed their sentences.

Chris Uggen found that had felons been allowed to vote in the last presidential election, hanging chads would have never been an issue. Uggen looked at the closely contested 2000 election and discovered that had felons had the vote, Al Gore would have likely won the popular vote by more than a million votes. In Florida alone, Gore would have picked up 60,000-80,000 votes--enough to swamp the narrow victory margin declared for George Bush. Uggen also found that had felons--even just those who had completed their sentences--voted over the past couple of decades, races across the country might have looked very different. One critical difference could have been control of the US Senate. Republicans including John Warner of Virginia and Mitch McConnell of Kentucky would likely have lost in past elections, according to Uggen, which may be part of the reason Senator McConnell told his senatorial colleagues when Reid's amendment was being debated on the floor: "We are talking about rapists and murderers, robbers and even terrorists or spies."

For their part, Democrats in Congress have not rushed to champion the issue. Appearing soft on crime might cost Democrats more votes than they would gain, suggests Uggen. Also, felons are a constituency that can't exactly fill Democratic coffers, say Washington insiders, so they don't get a lot of attention. Janai Nelson of the legal defense fund says that when it comes to expanding the franchise, those in power are content with the status quo. "They are already successful. They've made their way into office and they've relied on the political system as it exists, and very few people want to rock the boat and bring in a new constituency that they may not be familiar with," she says.

At an NAACP candidate forum this summer, presidential candidates John Kerry, Bob Graham, Howard Dean, Carol Moseley Braun, John Edwards and Al Sharpton said they supported restoring the right to vote to ex-felons, though Edwards and Graham voted against Reid's amendment last year. (Kerry voted for it.) Joseph Lieberman, who did not attend, did support Reid. In 2003, Dennis Kucinich, who was not at the forum, co-sponsored a similar bill by John Conyers in the House calling for ex-felons to be allowed to vote. Dick Gephardt favors leaving the issue to the states.

For her part, Jan Warren wonders: What happened to rehabilitation? And what about the women she met in prison who struck out in self-defense against violent husbands and rapists? Or those who were wrongly convicted? In January, then-Illinois Governor George Ryan pardoned Madison Hobley, who spent thirteen years on death row for murder. At a nationally televised press conference, the governor said Hobley and three other death-row inmates were wrongly prosecuted, and called the system that convicted them "wildly inaccurate, unjust...and, at times, a very racist system."

When it was Hobley's chance to speak, it wasn't the fact that his life was spared that he wanted to talk about. "I said I can't wait to vote again, it was the first thing I wanted to do," said Hobley. "Two weeks after I got out I made sure to get my voter's registration card, and all the officials that turned their head on me, now I've got a chance to get back at them and vote them out."

History is a slow process, but time seems to be on the side of expanding the franchise. "It will be a decades-long struggle but it has the potential to be decade-defining for those members of society who are the most stigmatized and the most invisible," says Robin Templeton, who is now directing an effort in New York, Maryland, Texas, Alabama and Florida focused on restoring voting rights to prisoners. In recent years, Connecticut, Delaware, Maryland and New Mexico have passed less restrictive disenfranchisement laws, and there are legal challenges pending in Florida and Washington State as well as New York. Hayden v. Pataki is expected to come to trial in 2005.