Excerpt: Conned

Human Rights

A few months before Election 2000, disturbing stories began surfacing in the Florida media about the electoral rolls being "scrubbed," or "purged."

Hundreds of thousands of Floridians were technically not allowed to vote because they had been convicted of a felony at some time in the past; yet the state was worried that several thousand of these men and women (though still less than 10 percent of the state's total number of felons) might have registered to vote anyway and that county officials might have failed to notice that these people were ineligible to vote. And so state officials decided to clean up the rolls.

A private company named Database Technologies, or DBT, was hired by the secretary of state's office to create lists of people thought to have felony records. The secretary of state then sent the lists to county election supervisors and ordered them to remove voters from the rolls if their names showed up on the purge lists. The criteria for potential "matches" of felons' names with the names of people on the electoral rolls were so vague that if only 70 percent of the information overlapped - if a person's name was the same as a felon's nickname or alias, for example - a person would be sent a letter telling them they were being taken off the list of eligible voters because of a prior felony conviction.

As the reports flowed in, it became clear that something had gone very wrong: the vast majority of those being removed from the political process were African American, and a grossly disproportionate number of those removed were likely Democratic voters from Democratic precincts.

Two issues were being played out in Florida 2000. The first was a straightforward, almost technocratic question: were the "right" people ending up on the purge lists, and being removed from electoral rolls, or were these lists being populated by "wrong" names, by people who had never been convicted of felonies? Given the ineptitude of those who had compiled the "purge lists," this problem alone - even though it only dealt with a tiny percentage of the total number of disenfranchised in the state - was of a magnitude large enough to have prevented the Democrats from cleanly winning Florida.

The second issue was more complicated, more philosophical: should "purging" of electoral rolls occur in the first place? Was there a credible intellectual defense of the practice of removing, permanently, the vote from anyone ever convicted of a felony, even if they were living crime-free in the community and paying taxes like everyone else? Most states had, at one time or another, permanently removed at least some categories of felons from their voter rolls; yet, by 2000, the vast majority of states had abandoned these laws, replacing them with temporary bans on voting that generally mirrored the length of a person's prison, parole, or probation sentence. Two states, Maine and Vermont, actually let people vote while in prison - a practice that didn't appear to have much public support in America but which was the law of the land in many other countries, including allies of America such as Israel and post-apartheid South Africa. In Florida, by contrast, most politicians seemed pretty content with keeping the re-enfranchisement bar as high as possible.

Nationally, in the wake of the Florida 2000 debacle, there has been a growing debate within criminal justice circles about whether a felony conviction should, in any way, be linked to the loss of voting rights. There are some who argue that access to the ballot in a democracy is an absolutely inalienable right rather than a privilege, and that a person convicted of a crime should pay a penalty - a fine, community service, or time spent behind bars - but should not be removed from the political process.

There are others who believe that a person who breaks the social contract - in other words, someone who flouts laws agreed upon by the community as a whole - cannot be trusted to participate in the rule-making process; that, in order to preserve the smooth-functioning mechanism of the political system, the rights of at least certain lawbreakers must be forfeit.

It's an argument that has a long pedigree, going back at least as far as seventeenth-century liberal theorists such as British philosopher John Locke. Personally, I think this is a moral gray zone, a place without perfect solutions, a space within which the arguments both in favor of and opposed to removing the vote from those currently serving a sentence have their good points and bad. Were we living in a world lacking all the biases and differences in opportunities that affect the life chances of different individuals and groups, and were all the laws that were used to convict people near universally acknowledged to be fair and just, I would say that temporarily removing the vote as a part of a felon's punishment makes philosophical sense. After all, those who violate fundamental social norms, particularly by wreaking violence on others, have, in a sense, expressed their contempt for the code that binds us together into a community. Thus it doesn't strike me as implausible to say that, for a while, they should not have a say in shaping that community. Opinion polls in America tend to show pretty consistent popular support for such temporary disenfranchisement.

In the real world, however, where a young, poor, black, or Latino man is far more likely to be arrested, incarcerated, and disenfranchised than a more affluent white man, where the fairness of many of the contemporary laws - in particular those relating to drug sentencing - that put people in prison is hotly contested, I would contend that disenfranchisement, even temporarily, overall does more societal harm than good. It is too heavily laden with the baggage of a culture divided along racial and class lines ever to be viewed as simply a criminal justice matter; its impact is too predictably absorbed by the economically marginal and the racially discriminated against to be viewed in isolation from broader social tensions.

Unjust as the implementation of temporary disenfranchisement may be, however, permanent denial of voting rights to one-time felons represents injustice of an altogether larger magnitude. But because those who can't vote are, almost by definition, marginalized people, at a state level there's no real political pressure to restore felons' voting rights. Rather, politicians, especially in conservative Southern states, feel they have far more to lose than to gain by touching the issue.

When Mississippi state senator Bennie Turner, an African American attorney based out of the little town of West Point, introduced legislation to provide automatic restoration of voting rights after full completion of a sentence - legislation modeled on a law passed by re-enfranchisement proponents in Texas in 1997 - the bill was killed in committee. The second time around, he tacked it on as an amendment to another bill and forced a floor vote; all the eleven black senators in Mississippi supported it, and only four of the forty one white senators did. Again, the bill died.

Opponents of re-enfranchisement swore their stance had nothing to do with race. Black legislators, on the other hand, were persuaded otherwise. After all, segregation in Mississippi is still too deeply ingrained in the population's consciousness to be able to think about such laws without thinking about race. Senator Turner could remember accompanying his nervous parents when they first registered to vote (with federal voter registration people taking the registration forms of blacks because local whites wouldn't) in 1965. He could also remember how, when public facilities were ordered integrated, local politicians decided to fill in West Point's Olympic-size swimming pool rather than bear the indignity of blacks and white swimming together. "The town leadership decided it was better to bust the walls off the pool and fill it up with dirt and cover it over," Turner told me, his voice still filled with wonder at such craziness.

At the very least, the results of disenfranchisement in contemporary Mississippi played out in a racially skewed manner. In Parchman, the state's oldest and largest prison, four in five prisoners were black. Statewide, more than two-thirds of Mississippi's prisoners were black. Blacks had made up the bulk of Mississippi's prisoners for generations. And, by extension, they made up the vast bulk of those who cycled back out to the community but spent their lives as political invisibles.

Throughout Mississippi -- a state that disenfranchises many ex-felons but, in theory, allows certain categories to reapply for the vote -- as the 2004 election geared up, voter-registration workers encountered numerous people too scared to register. People convicted of crimes as minors. People convicted of crimes as adults. Overwhelmingly, black people scared of any form of contact with authorities they saw as looking for excuses to reincarcerate them. In neighborhood after neighborhood, the grandchildren of the civil rights pioneers from the 1950s were as scared to vote, because of prisons and the threat of prisons, as their grandparents were half a century ago because of the threat of the lynch mob.

"They just don't believe they can vote," explained Nshombi Lambright, of the Jackson ACLU. "They've been told very strongly that they can't vote. Mostly, parole and probation officers are telling them this - but also judges and correctional officers. People aren't even trying to get their vote back. It's hard just getting them to attempt to register. They're terrorized. They're so scared of going back to jail that they won't even try it."

The combination of true disenfranchisement and street rumor stoked by correctional officials and judicial authorities had indeed served to decimate Mississippi's electorate - removing more than enough voters to swing close election results. In 1999, the race for the governor was eventually won by Democrat Ronnie Musgrove by slightly more than 1 percent. Although most analysts believe a majority of ex-felons would vote Democratic if given the chance, it is possible that Republican Mike Parker might have been able to win had Mississippi's large number of disenfranchised been able to vote. Four years later, the tables were turned when Haley Barbour, an extremely conservative Republican, won the governorship by 60,000 votes. It was a not insignificant margin, but, at the same time, like the previous gubernatorial race, this one was also one conceivably within the margins of doubt created by the disenfranchisement epidemic.

That same year, Gary Anderson ran for state treasurer. Anderson had previously been the state's fiscal officer, rendering him well qualified for the job. He was also African American, and, had he won, he would have been the first African American elected to a statewide position in Mississippi since Reconstruction more than 130 years earlier. But Anderson didn't win. He was defeated by a few percentage points by Tate Reeves, a political novice and a staunch conservative who had the advantage of being white in a state where many whites still wouldn't cast their ballot for a black man and where many blacks had seen their political weight dramatically reduced by modern-day disenfranchisement.

In Mississippi, as in so many other parts of the country, the ill-thought-out responses to crime and drugs that have characterized criminal justice policy for a third of a century now - the lock-'em-up policies that have resulted in America incarcerating a far higher proportion of its population than any other country on earth - had, by 2004, served to undo a good part of the legacy of the 1965 Voting Rights Act.

"People that want to vote don't know they can vote. If they knew, I'm almost sure they would vote. But they just don't know they can," a forty-four-year-old African American woman named Willa Womack, who had cycled in and out of jail and prison on drug charges from her teenage years into her thirties, explained. Womack had been out of prison for nearly a decade and now owned a copy shop on historic Farish Street, in the heart of Jackson, just down the street from Miss Peaches' famous soul food restaurant. "We were told we didn't have the right to vote on anything. I never knew how important it was to vote. I thought that way for a long time. The subject came up and I said 'I don't think I can vote.' Anybody tells you something, it spread like wildfire. How long you think it take if someone tells you you can't vote before it spreads? It's been years and years people telling you you can't vote. You live in a slum area, you're not counted. So all this plays in the same way."

In June 2004, I met Jazz Hayden, a sixty-something activist from New York who had spent much of his adult life behind bars on charging ranging from drug possession all the way up to attempted murder. He earned four college degrees in prison before his release, doing everything he could to demonstrate that he had been rehabilitated, that he was no longer a danger to the broader society, after which he established a reputation as a no-nonsense policy advocate. Hayden told me that voting was "the coin of the realm." Politics, he said, was a game, and to stake your place in the game you had to vote. "The voting issue," he argued, "is the only issue that addresses questions of power and power relationships between prisoners and prison administrators, and communities prisoners come from and the state. It the key issue. It's the one right you have to have to protect all your other rights - to choose who's going to lead, [who are] going to be policy makers and who's going to run things, and how they're going to run things."

Disenfranchised by felony convictions, however, millions of Americans simply can't vote. They are now removed from the game before the starting pistol is even fired. And thus they drift through life on the outside as citizen-ghosts, as taxpayers and neighbors and service users, but not as voters, not as people to whom those seeking office have to pay attention. I think of the melancholy song sung by the cuckolded husband in the musical Chicago: "Mr. Cellophane should have been my name, 'cause you can see right through me, walk right by me, and never know I'm there." Lacking the vote, come election time those barred from the process simply do not count.

If America is to live up to its democratic rhetoric, re-enfranchising the millions removed, both legally and emotionally, from the voter rolls during the heavy-handed and poorly strategized "wars" on crime and drugs will, I believe, be one of the great political challenges of our age.

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