Out to Vote

When has an individual convicted of a felony fully repaid their debt to society? When should they be welcomed back into the fabric of civic life as a contributing and engaged citizen? In the United States, the answer has often been long after being released from prison or, in some cases, never.

In a country where 70 million to 100 million citizens have criminal records, such policies of “civil death”, or the stripping of civic rights of individuals convicted of a felony, threaten to create an entire class of previously incarcerated people who have no pathway back to meaningful engagement with society. This is concerning, especially since many Americans already feeling distrustful of their democracy.

More than half a million people annually enter American prisons, the majority for non-violent offenses.

The U.S. is the global leader in incarceration, jailing more than 650 people per 1,000 citizens, a rate that just eclipses that of El Salvador and dwarfs the third-highest rate of 464 per 1,000 in Rwanda. More than half a million people annually enter American prisons, the majority for non-violent offenses.

With so many exposed to the criminal justice system, how the country manages the reincorporation of people released from prison is a particularly pressing issue. For many, a run-in with the law can shape their future, even well after a sentence is served. A felony conviction can make it difficult to subsequently rent a home or obtain employment.

These complications render successful reintegration difficult and recidivism a stubborn concern. The Center for American Progress notes a 2016 U.S. Sentencing Commission finding that “nearly half of all individuals released from federal prisons are rearrested within eight years of their release, and around half of those rearrested are sent back to jail.” Such recidivism has negative spillover effects across society ― on the individual who returns to a prison cell, on their family, on the community that suffers the crime, and on taxpayers who lose a potential contributor and foot the bill for mass incarceration.

Recent scholarship has indicated, however, that there are ways to reduce recidivism and support full social reintegration. These studies have highlighted the positive impact of education attained during imprisonment. RAND, for example, found that “[i]nmates who participate in any kind of educational program behind bars — from remedial math to vocational auto shop to college-level courses — are up to 43 percent less likely to reoffend and return to prison.” Other studies have homed in on the importance of substance abuse treatment.

More recently, thanks to the tireless work of advocates, another key element has worked its way into public consciousness: The importance of providing returning citizens access to the democratic process.

Many U.S. states adopted over time the British concept of civil death. Forfeited rights can include that of sitting on a jury, running for office, or working in certain professions. In this way, these states once permanently disfranchised people convicted of felonies. As Politico’s Jack Shafer has written, under the presumption of civil death “convicts were dead, and seeing as dead men can’t vote, they were banned from the ballot booth.” The Sentencing Project, a non-profit advocacy organization, found that in 2020 “5.2 million Americans [we]re forbidden to vote because of felony disenfranchisement”.

Such a policy is certainly punitive, but is it productive? The stripping of civic rights sends a blunt message that individuals convicted of a felony are unwelcome to rejoin civil society. American democracy consequently does not represent them, which serves only to further social alienation and reinforce a drift back towards illegal activity.

The stripping of civic rights sends a blunt message that individuals convicted of a felony are unwelcome to rejoin civil society.

Civic participation in the U.S. is already declining. From voting to organized sports to PTA membership, manifestations of civil society have dropped precipitously in recent decades. And, as daily life becomes increasingly digitized, Americans have ever fewer interactions with their physical surroundings. That presents a danger to sustainable democracy, which, political scientists have long argued, strongly corelates with engaged communities.

The growing isolation, in turn, feeds into a pernicious sentiment that political institutions are detached from the will and needs of the people, a sentiment on the rise in the U.S. Given this nationwide trend away from community involvement, exacerbating the problem by shutting the door on the millions of citizens released from prison is not sensible.

Changing the Policy: Florida’s Restrictive Approach

Following painstaking efforts by advocates for formerly incarcerated people, states across the union are slowly coming to the same conclusion. Only a handful still permanently disenfranchise some individuals convicted of a felony who have paid their debt to society. A case study of one state that attempted reform, Florida, reveals the pitfalls of the movement to restore voting rights.

For decades, Florida maintained some of the harshest laws sustaining disenfranchisement. By 2016, roughly 1.6 million Floridians — more than 10% of the state’s voting age population — had permanently lost their right to vote due to a felony conviction.

In 2019, Florida’s Republican-controlled legislature passed a law stipulating that completion of a sentence required the repayment of the fines restitution and fees imposed at sentencing.

This status quo appeared poised to change in 2018, when nearly 65% of Floridians approved Amendment 4 in a referendum. The amendment meant to reform the state’s constitution and restore the voting rights of citizens who had completed the terms of their sentences unless convicted of murder or sex-related crimes. Reform, however, was stymied by a controversial reading of the amendment’s fine print. In 2019, Florida’s Republican-controlled legislature passed a law stipulating that completion of a sentence required the repayment of the fines, restitution and fees imposed at sentencing.

Compliance with this new law is onerous and, in some cases, essentially impossible. Such fees could amount to thousands of dollars, a hefty sum for many formerly imprisoned citizens. But even if the dollar figure were surmountable, it was often indeterminable. There was no straightforward manner to ascertain if one owed money and, if so, how much. To critics, the law appeared to be a poll tax that would engender enough uncertainty to keep many individuals convicted of a felony away from the polls. Voting illegally is, after all, a felony in Florida. The risk of committing another crime would be too great.

Maryland’s Alternative Approach

Advocates and lawmakers in Maryland, in contrast, have succeeded in establishing a more comprehensive approach to voter-rights restoration. In 2007, Democratic Governor Martin O’Malley signed legislation that ended lifetime disenfranchisement in his state, restoring the right to vote to more than 50,000 citizens.

However, like Florida’s Amendment 4, Maryland’s legislation left some gray areas. What about individuals convicted of a felony released from prison but still on parole, or individuals on probation? Both conditions could last for years, a critical and vulnerable time during which a released individual would be most in need of social reintegration.

Precisely when a citizen regained the right to vote was difficult to determine under the 2007 legislation. This led not only to the disengagement of citizens who may not even have realized that they had regained the right to vote, but it also required significant administrative attention by the state to determine who was eligible and who was not.

Meanwhile, activists at non-profit organizations such as the Maryland Justice Project and Out for Justice argued that society was losing the positive benefits of engaging individuals formerly convicted of a felony in the democratic process. These activists began a coordinated, sustained effort to liberalize the law, and their efforts paid off in 2015 with the passage of further legislation extending the right to vote to anyone released from incarceration even if still on parole or probation. This offered a pathway for an additional 40,000 people to vote.

In testimony supporting the bill, Tomas Lopez of the Brennan Center for Justice at New York University School of Law argued that the legislation would benefit individuals and the larger community by “increasing political participation… and facilitating a successful re-entry”. Lopez highlighted the knock-on impact of bringing someone back into the democratic process as that individual would likely influence the actions of family members and neighbors. The 2015 bill was vetoed by Republican Governor Larry Hogan but, in 2016, the Maryland legislature overrode his rejection.

[Maryland] passed legislation that requires correctional facilities to inform people who had been convicted of felonies that their voting right is restored and present them with a voter registration application upon release.

In 2021, even as other states seek to restrict access to the ballot box, Maryland has continued with an alternative approach. The state passed legislation that requires correctional facilities to inform people who had been convicted of felonies that their voting right is restored and present them with a voter registration application upon release. This law also requires collaboration between correctional facilities and the state and local Boards of Elections to provide detained people who are eligible to vote with voter registration and mail-in ballot applications (this situation is most common when individuals are awaiting trial or serving time for a misdemeanor).

What Have We Learned?

Five years after the 2016 legislation, we can begin to consider the impacts of that legislation and to weigh its benefits against the risks. A new Bertelsmann Foundation documentary, Out to Vote, which will have its next online screening June 15, depicts the positive spillover effects of the liberalized approach.

The film follows three community leaders in Baltimore ― Nicole Hanson-Mundell and Bobby Perkins of Out for Justice, and Monica Cooper of the Maryland Justice Project ― as they engage marginalized citizens who have been led to believe that their votes do not matter or that they would be unwelcome at the polls. In an era of political disengagement and an entrenched malaise of partisan nihilism, these community leaders work tirelessly to retether Americans to their democracy.

Until a few years ago, all three community leaders would have been barred from participating in the political process. They were once convicted of a felony and incarcerated. Perkins remains on parole, meaning he would remain disenfranchised without the more recent legislation.

The trio’s work reveals the positive externalities the community enjoys when released citizens can partake in the democratic process, and the film demonstrates the power that access to democracy can have on individuals. Perkins, for example, was incarcerated for 37 years, more than half his life. In Out to Vote, viewers follow him as he walks some of Baltimore’s toughest streets, engaging anyone and everyone he passes, an activity that appears to give meaning to his life. “That’s why I go out and pound these sidewalks, to register people,” he explains between puffs of a Newport cigarette. “Because I believe in it. I believe in the democracy.”

An Election to Celebrate

The positive impact traditionally marginalized voters and communities had on the democratic process influenced the 2020 election. 2021, however, has thus far been marked by efforts to curtail that impact. Republican-controlled states are considering or passing legislation that appears intended to make it harder to vote or to dilute the power of a vote. Georgia’s controversial SB202 legislation “functionally allow[s] Republicans to handpick the people in charge of disqualifying ballots in Democratic-leaning places like Atlanta”. A new law in Arizona seeks to limit voter registration efforts. Texas is considering legislation that would limit voting by mail.

Such laws respond to a problem — voter fraud — that does not exist on a meaningful scale, and they taint the 2020 election by recognizing baseless yet widespread claims of fraud. In fact, the legislation addresses an issue that should be celebrated: the participation in the vote of nearly 160 million Americans despite a global pandemic.

The truth is that the 2020 election demonstrated the power of democratic engagement and, perhaps more importantly, of the positive consequences of including vulnerable communities in the democratic process. Formerly incarcerated individuals are a powerful example of such inclusion, even if they represent just one of these communities.

By highlighting efforts to promote democratic inclusion and access, “Out to Vote” suggests that the 2020 election is an example of American excellence. Legislation against such efforts is, at best, misguided and, at worst, an assault on American principles.

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