Sunday, June 19, 2011

Kicked to the Curb: A Return to Prison

Civil death
From Wikipedia, the free encyclopedia
Civil death (Latin: civiliter mortuus)[1] is a term that refers to the loss of all or almost all civil rights by a person due to a conviction for a felony or due to an act by the government of a country that results in the loss of civil rights. It is usually inflicted on persons convicted of crimes against the state or adults determined by a court to be legally incompetent because of mental disability.[2]
In medieval Europe, felons lost all civil rights upon their conviction. This civil death often led to actual death, since anyone could kill and injure an ex-felon with impunity.[3] In the old German Empire, a person declared civilly dead was called "vogelfrei" ("free as a bird") and could even be killed since they were completely outside the law.[4]
Historically outlawry, that is, declaring a person as an outlaw, was a common form of civil death.[4]
In the US, the disenfranchisement of felons or ex-felons has been called a form of civil death;[5] see also loss of rights due to felony conviction.
A recent study by the Pew Center on the States, a nonprofit public policy research organization, found that 43.3 percent of people released from the nation’s prisons in 2004 were reincarcerated within three years. But many state prison inmates  are released after serving their sentence without any requirement that they check in with authorities to make sure they’re not getting into trouble again. Theoretically, at least, inmates who leave prison under supervision ought to have a much lower recidivism rate than those who do not.

Ex-Convicts and Civil Death

Imagine a corporate executive who’s been convicted of embezzlement. He serves his sentence and some years later, having paid his debt to society, leaves prison a free man. Now he’s an ex-convict, in fact, an ex-felon. Should we allow him to vote? Or has he forfeited his right to participate in American democracy?

Depending on where he lives, he may never vote again. Thirteen states bar ex-felons—permanently—from voting. Thirty-two states disenfranchise them while on parole, twenty-nine while on probation.

Few of us realize that ex-felons so commonly lose their right to vote. Nor are we aware that any felony can trigger what some have called “civil death.” If, for example, a first-time offender pleads guilty to a single drug sale and is placed on probation, he or she can be permanently barred from voting. As Andrew Shapiro, an attorney, notes, “ An eighteen-year-old first-time offender who trades a guilty plea for a non-prison sentence may unwittingly sacrifice forever his right to vote.”

The people most affected by these laws, as you might suspect, are not corporate executives. They are disproportionately black men. Thirteen percent of African-American men—1.4 million people—are permanently disenfranchised because they are in prison, on parole or probation, or are ex-felons.

The impact of such widespread disenfranchisement on our elections is staggering. Florida, for example, denies the vote to ex-felons who have fully served their sentence. According to New York-based Human Rights Watch, Florida law prevented more than four hundred thousand ex-felons from voting in the November election. Among African-Americans, the impact was dramatic. Approximately one-third of Florida’s black men—some two hundred thousand residents—were legally prohibited from casting a vote. Human Rights Watch concludes: “Assuming the voting pattern of black ex-felons would have been similar to the vote by black residents in Florida generally, the inability of these ex-offenders to vote had a significant impact on the number voting for Vice President Gore.”

In other words, absent these disenfranchisement laws, Gore would now be president.

This nation began with a stingy view of who was virtuous enough to cast a vote in elections. In fact, the framers limited this right to free white men who owned property. But ever since, suffrage has been extended to those who were initially excluded: people without property, women, African-Americans, and people who are not literate.

The one group still excluded is convicted felons. In part, this is a legacy of the South’s successful post-Reconstruction effort to prevent freed slaves from voting. Between l890 and 1910, southern states crafted their criminal disenfranchisement laws, along with other voting qualifications, with the goal of preventing African-Americans from voting. In 1901, for example, Alabama lawmakers inserted a provision in the state constitution that disenfranchised any person guilty of the felonious crime of “moral turpitude.” (In the South, that could mean just staring at a white woman.) Nor did the legislators even bother to hide their goal, which they openly declared was to establish and preserve white supremacy.

We are the heirs of that racist legacy. In most democratic countries, ex-felons are expected to re-enter society as citizens newly endowed with the rights and responsibilities they lost as legal outcasts. “These people have paid their debt to society,” says Jamie Fellner, associate counsel at Human Rights Watch. “No other country in the world takes away the right to vote for life.”

But in America, our legacy of slavery and Reconstruction still affects so many aspects of our democratic process—from the electoral college to poorly working voting machines in black districts. The bright side of Election 2000, however, is that it has ignited a spirited reconsideration of many of the arcane practices that shape our electoral process. So far, though, the issue of how many people are disenfranchised because of their criminal pasts has not been highly publicized.

I believe that an individual who is imprisoned for a felony should give up many civil rights, including that of suffrage. But afterward? If the point of imprisonment is rehabilitation, how can we conclude that people should suffer civil death after they have been released from prison? When a person has done time, he or she should be able to vote again, not after finishing parole, but upon leaving the prison grounds.

Because the disenfranchisement of ex-felons disproportionately affects African-American men, many of whom are in prison for drug felonies, many blacks are rightfully angry that disenfranchisement laws rob them of their participation in the voting process. “Fifty years after the beginnings of the civil rights movement, it is tragic that every day more black citizens lose their voting rights,” says Marc Mauer, assistant director of the Washington D.C.-based Sentencing Project. “This is not just a criminal justice issue, but one of basic democracy.”

Joe Loya, a disenfranchised ex-felon, expresses this sentiment even more eloquently: “Without a vote, a voice, I am a ghost inhabiting a citizen’s space. I want to walk calmly into a polling place with other citizens, to carry my placid ballot into the booth, check off my choices, then drop my conscience in the common box.”

Listen to his words. They just may be the battle cry for the next struggle for suffrage.

Ruth Rosen, who teaches history at the University of California, Davis, and is an editorial writer at the San Francisco Chronicle.

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