The following smattering of quotes from the article should be enough to pique the interest and convince you to read it in its entirety:
"By the year 2007, 1 in every 31 U.S. residents lived under some form of correctional supervision. By 2010, more than 7.3 million Americans had become entangled in the criminal justice system and 2 million of them were actually locked up in state and federal prisons."
"How is it that this act of locking up so many Americans, particularly Americans of color, itself distorted our political process and made it almost impossible for those most affected by mass incarceration to eliminate the policies that have undergirded it at the ballot box? The answer lies back in the 1870s and in a little-known caveat to the 14th Amendment."
"With so many powerful arguments being made against our currentcriminal justice system, why then does it persist? Why haven’t the American people, particularly those who are most negatively affected by this most unsettling and unsavory state of affairs, undone the policies that have led us here? The answer, in part, stems from the fact that locking up unprecedented numbers of citizens over the last forty years has itself made the prison system highly resistant to reform through the democratic process. To an extent that few Americans have yet appreciated, record rates of incarceration have, in fact, undermined our American democracy, both by impacting who gets to vote and how votes are counted."
"With the advent of mass incarceration, and as the number of people imprisoned not only rose dramatically, but also began moving urbanites of color into overwhelmingly white rural counties that housed prisons, the political process was again distorted. In short, thanks to this process that we now call “prison- gerrymandering,” overwhelmingly white and Republican areas of the United States that built prisons as the War on Crime escalated got more political power, whereas areas of country where policing was particularly concentrated and aggressive, areas in which levels of incarceration were, as a result, staggering, lost political power."
For those of you who wonder why you should even care, check out the last paragraph...
How Prisons Change the Balance of Power in America
The 14th Amendment, when combined with the War on Crime, has
paradoxically disenfranchised vast swaths of the population and given
the rural, white areas surrounding the prisons unforeseen political
power.
To answer this question, some point to the nearly two million people who are now locked up in an American prison—overwhelmingly this nation’s poorest, most mentally ill, and least-educated citizens—and ponder the moral costs. Others have pointed to the enormous expense of having more than seven million Americans under some form of correctional supervision and argued that the system is not economically sustainable. Still others highlight the high price that our nation’s already most-fragile communities, in particular, have paid for the rise of such an enormous carceral state. A few have also asked Americans to consider what it means for the future of our society that our system of punishment is so deeply racialized.
With so many powerful arguments being made against our current
The unsettling story of how this came to be actually begins in 1865, when the abolition of slavery led to bitter constitutional battles over who would and would not be included in our polity. To fully understand it, though, we must look more closely than we yet have at the year 1965, a century later—a moment when, on the one hand, politicians were pressured into opening the franchise by passing the most comprehensive Voting Rights Act to date, but on the other hand, were also beginning a devastatingly ambitious War on Crime.
From Voting Rights to the War on Crime
The Voting
Rights Act of 1965 gave the federal government a number of meaningful
tools with which it could monitor state elections and make sure that
states with a particularly grim history of discriminatory voting
practices would make no voting policy without its approval. The act had
been intended to combat the intimidation and legal maneuvers—such as
passage of poll taxes, literacy requirements, and so-called “Grandfather
clauses”— that had left only 5 percent of black Americans, by the
1940s, able to vote, despite passage of the 14th and 15th amendments after the Civil War .
But the very
same year that Lyndon Johnson signed the Voting Rights Act of 1965, he
also signed another Act into law: the Law Enforcement Administration Act
(LEAA), a piece of legislation that, well before crime rates across
America hit record highs, created the bureaucracy and provided the
funding that would enable a historically and internationally
unparalleled war on crime.
So, at the very same moment
that the American Civil Rights Movement had succeeded in newly
empowering African Americans in the political sphere by securing passage
of the Voting Rights Act of 1965, America’s white politicians decided
to begin a massive new war on crime that would eventually undercut
myriad gains of the Civil Rights Movement—particularly those promised by the Voting Rights Act itself.
From the War on Crime to Mass Incarceration
Thanks to LEAA
and America’s post-1965 commitment to the War on Crime, and more
specifically, thanks to the dramatic escalation of policing in cities
across the nation as well as the legal changes wrought by an
ever-intensifying War on Drugs ,
between 1970 and 2010 more people ended up in prison in this country
than anywhere else in the world. At no other point in this nation’s
recorded past had the economic, social, and political institutions of a
country become so bound up with the practice of punishment.
By
the year 2007, 1 in every 31 U.S. residents lived under some form of
correctional supervision. By 2010, more than 7.3 million Americans had
become entangled in the criminal justice system and 2 million of them
were actually locked up in state and federal prisons. By 2011, 39,709
people in Louisiana alone were living behind bars and 71,579 were
either in jail, on probation, or on parole. And this was by no means a
“southern” phenomenon. In Pennsylvania, 51,638 people were actually
locked behind bars in 2011 and a full 346,268 lived under some form of
correctional control by that year.
The nation’s
decision to embark on a massive War on Crime in the mid-1960s has had a
profound impact on the way that American history evolved over the course
of the later 20th and into the 21st centuries. As we now know from countless studies, such staggering rates of incarceration have proven both socially devastating and economically destructive for wide swaths of this country—particularly those areas of America inhabited by people of color.
This nation’s incarceration rate was hardly color blind. Eventually one
in nine young black men were locked up in America and, by 2010, black
women and girls too were being locked up at a record rate.
Diluting our Democracy
So how did this
overwhelmingly racialized mass incarceration end up mattering to our
very democracy? How is it that this act of locking up so many Americans,
particularly Americans of color, itself distorted our
political process and made it almost impossible for those most affected
by mass incarceration to eliminate the policies that have undergirded it
at the ballot box? The answer lies back in the 1870s and in a
little-known caveat to the 14th Amendment.
Ratifying the 14th
Amendment was one of Congress’s first efforts to broaden the franchise
after the Civil War. A key worry among northern politicians, however,
was that since white southerners could no longer rely on the notorious
“three-fifths” rule to pad their own political power, they would now try
to inflate their census population for the purposes of representation
by counting African Americans as citizens while denying them to access
the ballot.
So, to prevent any power grab on the part of ex-Confederates, Congress decided to add so-called Section 2 to the 14th
Amendment. Firstly it stipulated that any state that “denied” the vote
“to any of the male inhabitants of such state, being twenty-one years
of age, and citizens of the United States” would have its representation
downsized in proportion to the number of individuals being
disenfranchised. Secondly, Section 2 allowed for the disenfranchisement
of otherwise eligible citizens—without affecting representation—if they
had participated “in rebellion, or other crime.” The idea here was to
keep those who had committed crimes against the Union and those who
might still be in rebellion against the Union from wielding political
power in the wake of the Civil War.
This latter
provision of Section 2, however, proved damaging to black
freedom—political and otherwise. Almost overnight, white southerners
began policing African Americans
with new zeal and charging them with “crimes” that had never before
been on the books. Within a decade of the Civil War, thousands of
African Americans found themselves leased out and locked up on prison
plantations and in penitentiaries.
Southern whites,
of course, profited from these new laws politically as well as
economically. By making so many blacks into convicts, whites could deny
them the right to vote under Section 2 without undermining their state’s
census population for the purposes of political representation. And,
because of another clause of another Amendment, the 13th,
which allowed the continuation of slavery for those who had committed a
crime, these same white southerners were able to force thousands of
newly imprisoned black southerners to work for free under the convict lease system.
Fast-forward 100
years when, in the wake of the Civil Rights movement, another War on
Crime began that also, almost overnight, led to the mass imprisonment of
this nation’s African American citizens.
In 1974, as the
numbers of imprisoned Americans was rising precipitously and when states
once again began to disfranchise individuals with criminal convictions,
the U.S. Supreme Court was asked in a landmark case, Richardson v. Ramirez, to rule explicitly on the issue of whether it was constitutional under the 14th
Amendment to disfranchise those serving, or who have served, time in
prison. The court did the same thing that many southern states did after
the Civil War—it interpreted Section A of the 14th amendment
very, very differently than it was intended to be interpreted. It, too,
decided that disenfranchisement would be permitted when a citizen was
convicted of any crime, without regard to whether such crimes
might be thought of as ideologically analogous to rebellion or were more
likely to affect African Americans than others.
Notably, Justice
Thurgood Marshall dissented vigorously in this case. The purpose of
Section 2, he argued, was clearly to enfranchise, not disenfranchise,
former slaves and their descendants. Marshall’s fellow members of the
bench, though, felt that their decision would not have any
discriminatory effect because the nation already had the Voting Rights
Act of 1965 to handle this issue.
And yet, the negative impact of Richardson v. Ramirez on
African American voting was vast and immediate. By the year 2000, 1.8
million African Americans had been barred from the polls because so many
felon disfranchisement laws had been passed in states across the
country after 1974. Not only were their votes not counted in that year’s
hotly contested presidential election, but by the next presidential
election a full ten states, according to The Sentencing Project, had
"African American disenfranchisement rates above 15%," which clearly affected the outcome of that contest as well.
By 2006, 48 out
of 50 states had passed disfranchisement laws and, with more than 47
million Americans (1/4 of the adult population) having criminal records
by that year, the nation’s political process had been fundamentally
altered. By 2011, 23.3% of African Americans in Florida, 18.3% of the
black population of Wyoming, and 20.4% of African Americans in Virginia
were barred from the ballot.
According to
sociologists Jeff Manza and Christopher Uggen, not only did African
Americans pay a high price for the disfranchisement policies that
accompanied the nation’s War on Crime, but so did liberal voters in
general. According to their research,
such policies “affected the outcome of seven U.S. Senate races from
1970 to 1998 . . . [and] in each case the Democratic candidate would
have won rather than the Republican victor” and these outcomes likely
“prevented Democratic control of the Senate from 1986 to 2000” as well.
Distorting our Democracy
Disfranchising
thousands of voters is only part of the story of how mass incarceration
has distorted American democracy. Today, just as it did more than a
hundred years earlier, the way the Census calculates resident population
also plays a subtle but significant role. As ex-Confederates knew well,
prisoners would be counted as residents of a given county, even if they
could not themselves vote: High numbers of prisoners could easily
translate to greater political power for those who put them behind bars.
With
the advent of mass incarceration, and as the number of people
imprisoned not only rose dramatically, but also began moving urbanites
of color into overwhelmingly white rural counties that housed prisons,
the political process was again distorted. In short, thanks to this
process that we now call “prison- gerrymandering,” overwhelmingly white
and Republican areas of the United States that built prisons as the War
on Crime escalated got more political power, whereas areas of country
where policing was particularly concentrated and aggressive, areas in
which levels of incarceration were, as a result, staggering, lost
political power.
Consider research by the Prison Policy Initiative showing how voters across the country gain political power from housing a penal facility. In Powhatan County, Virginia
41% of the 5th Board of Supervisors District that was drawn after the
2000 Census were actually people in prison and in both the First and
Third Supervisory Districts of Nottoway County, approximately ¼ of their
population comes from large prisons within the county. In the case of
Southampton County, such prison-based gerrymandering means that votes of
those citizens who live there are worth almost more than twice as much
as votes cast in other districts that have the required number of actual
residents.
In Michigan
as well, mass incarceration has meant distorted democracy. A full four
state senate districts drawn after the 2000 Census (17, 19, 33 and 37),
and a full five house districts (65, 70, 92, 107 and 110) meet federal
minimum population requirements only because they claim prisoners as
constituents. Similarly in Pennsylvania,
no fewer than eight state legislative districts would comply with the
federal "one person, one vote" civil rights standard if non-voting state
and federal prisoners in those districts were not counted as district
residents.
Why We Should Care
As Americans go
to the polls this November to vote on criminal justice issues that
directly affect our lives—ranging from proposals to decriminalize
marijuana, to roll back three strikes laws, to fund more prison
construction—the massive carceral state that we are trying to shape at
the ballot box has already distorted our democracy. Americans’ power to
even rethink, let alone undo, the policies and practices that have led
to mass incarceration via the franchise has been severely compromised—in
no small part due to the fact that the parties that benefitted the most
from the rise of this enormous carceral state are now empowered,
seemingly in perpetuity, by its sheer size and scope.
There are, of
course, other ways to dismantle the carceral state. Indeed, history
shows us that we ended the brutal convict leasing system of the
Post-Civil War era not by going to the polls but by grassroots and legal
activism. Nevertheless, we should all be concerned about the ways mass
incarceration has eroded our democracy. Even if we don’t care about the
record rate of imprisonment in this country—despite its myriad ugly
consequences, its unsustainable cost, and its particularly devastating
fallout on communities of color—when the principle of “one person, one
vote” no longer has real meaning in a society, and when political power
is no longer attained via its people but rather through a manipulation
of their laws, we must all question the future of our nation.
