The Perpetual Punitive Machine Backfires
Our nation has a penchant for creating unnecessary complexity and obstacles for its people in areas such as the tax, health insurance and student debt miasmas. The prison industry adds to this with what it euphemistically calls “collateral consequences.” In simple language, this means a series of state-based statutory punishments – rooted in the medieval English practice of “civil death” – that greet ex-felons who have served their time and paid their debt to society.
Our country’s overall policy is that once punished, ex-felons are released from prison to be free to re-integrate themselves into society as normal productive human-beings, yet we have a quagmire of unnecessary laws that prevent full rehabilitation. Many states prevent ex-felons from voting, and obstruct them when they try to obtain housing, enter college or get needed public benefits or employment. This simply does not make sense because such laws encourage recidivism, not rehabilitation. Some ex-felons then resort to unlawful means to feed, clothe and house themselves and their families.
If you’re into cognitive dissonance, you can visit the websites of two organizations dedicated to righting this wrong. They detail the myriad of state laws and how ex-felons find themselves in a labyrinth of bureaucracy or end up in jail again. (Visit the Vera Institute of Justice and The Sentencing Project for more information.)
Let’s consider an ex-felon who serves his/her sentence and wants to live a law-abiding life. Eleven states say they have no voting rights – permanent disenfranchisement. Other states have exceptions to the exceptions depending on the ex-felon’s status, parole, etc. Only Maine and Vermont have no restrictions for ex-felons and, in fact, in these two states ex-felons can vote via absentee ballot while in prison.
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In the nineteen-seventies, three ex-felons in California sued to get back their right to vote. The U.S. Supreme Court, in a majority opinion by Chief Justice Rehnquist, rejected their argument that they are being denied equal protection of the laws under the U.S. Constitution (Richardson v. Ramirez 418 U.S. 24(1974)).
Moreover, under many state laws, landlords, community colleges and universities, student loan creditors and social welfare agencies can outright reject ex-felons.
Is it enough to affect the prospect of an honest election? According to the Sentencing Project, 5.85 million Americans are currently denied their right to vote. Furthermore, the institutional racism of the school-to-prison pipeline results in one of every thirteen African-Americans being denied their right to vote. With such racial bias, it is no wonder that we have such underrepresentation of many groups by our elected officials.
Additionally, the results of 2000 and all the negative consequences of 8 years under President Bush could have been entirely different had ex-felons not faced such discrimination because Florida is one of the states that has complete felon disenfranchisement.
In 2000, the consulting firm to Florida Secretary of State Katherine Harris, during the Jeb Bush governorship, somehow confused thousands of names of voters with the names of ex-felons and took away their right to vote. These law-abiding citizens could have more than made up for the 537 vote gap between George W. Bush and Al Gore. Without such voter restriction laws, this farce of a “mix-up” would have never occurred. Neither the consulting company, nor Ms. Harris incurred any penalty for such a portentous tampering.
Studies have shown, not surprisingly, that reducing the isolation of ex-felons by lifting these harsh post-punishment restrictions reduces the recidivism rate. Many states are responding to the obvious and are passing amendments chipping away at these post-prison sanctions with bewildering stratifications of ex-felons and parolees. So there is some progress, especially on the voting ban. (By the way, a blanket ban on voting from prison violates the European Convention on Human Rights.)
But do these state laws, that arbitrarily punish the already punished, even pass the smell test? We are supposed to be a country under the rule of law, which includes what is called “due process.” That means you cannot be punished by the states without procedures that allow you to confront your accusers and defend yourself in open court before judge and jury, with rights of appeal. Remember, the Supreme Court ruled decades ago that if you are poor you must be given an attorney to defend you in criminal cases.
Under the draconian systems of “collateral consequences,” or post-punishment penalties, ex-felons find themselves on one chopping block after another. They may ask – “Why are we being denied, excluded, or deprived, without even a hearing, of rights accorded everyone else after we’ve served our full sentence?”
More constitutional lawyers should test various provisions of the U.S. Constitution as they apply to various restrictions affecting ex-felons. The legislative process, known for being slow and haphazard, cannot adequately rectify the undue burdens of ex-felons who have been stripped of their civil rights.
This issue affects all members of society. It hurts the individuals, their families, and their communities. In addition, it costs the taxpayers more and more money each year to imprison people who fall victim to recidivism. It is not in anyone’s interest to undermine rehabilitative programs and prevent ex-felons from more fully entering society.
Not very smart for a country that thinks so much of itself.