Prisoner Voting Rights


Politicians with prisons in their district gain political power. And this political power comes as a direct result of disenfranchising prisoners.

There is broad agreement, on the right as well as on the left, that incarceration rates have skyrocketed since the early 1990s, and that we need to reduce prison populations. Yet, actually reducing the number of people in prison is a grindingly slow process. If the current rate of prison reduction holds, we won’t return to mid 1980’s figures for decades.

Activists often explain the slow rate of change by arguing that prison is profitable for certain interest groups, who push politicians to support mass incarceration. Businesses which run private prisons, or which benefit from prison labor, can lobby politicians to influence their support for mass incarceration.   

Scholars argue, however,  that there may be another, even more important factor influencing political support for prisoners. Prisoners are disenfranchised, but they are counted in the census when apportioning representation. The result is similar to the 3/5 compromise under slavery, in which black people could not vote, but were counted as 3/5 of a person for representation, buttressing the voting power of the slave states.  People without the power to vote themselves end up increasing the political strength of those who are oppressing them.

In every state except for Maine and Vermont, incarcerated felons lose the right to vote. In addition, prisoners are generally counted as residents of the place where they are incarcerated, not as residents of the communities they came from.

Despite making up only 32% of the general US population, blacks and Hispanics represent 56% of the US prison population.  What this means is that disproportionately black and Hispanic people living in urban areas are shipped to areas that are whiter and more rural. "It's effectively moving voters out of Democratic districts and moving them to conservative districts where they can't vote," explained John Pfaff, a law professor at Fordham University and author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.

Prisons bring population to rural areas, and drain population from urban areas. The prisoners can't vote, which means that the voting power of rural residents is inflated by prisons, while the voting power of urban areas is diminished.

Researchers are still trying to assess exactly how much rural areas benefit from this dynamic. A forthcoming paper in the Du Bois Review, however, suggests that the effect, while small, can be important. Authors Brianna Remster and Rory Kramer calculated the effect on Pennsylvania's state legislative districts if prisoners were counted as part of their home communities, rather than as residing in the districts of the prisons in which they are housed.  

The researchers found that if prisoners were moved back to their home districts, four rural legislative districts in Pennsylvania would be too small to qualify for a separate legislator. Another four urban districts would be too large. Moreover, if prisoners were returned to their home communities, more than 100,000 black people in Philadelphia would live in areas with populations too large to meet the legal requirements for legislative districts. In short, prisons in Pennsylvania ensure that rural districts and white districts are overrepresented, and that black districts and urban districts are underrepresented in the state legislature.

Prisons empower rural politicians. Politicians have a tendency to protect their political power. Therefore, one would expect rural politicians to vote to preserve overcrowded prisons in their districts.

A 2015 paper by Rebecca U. Thorpe of the University of Washington found that rural politicians do just that. She looked at the voting records of state legislators in New York, California, and Washington State who had prisons in their districts. What she found, she told me, was "that state lawmakers representing rural communities with prison infrastructure consistently vote to uphold draconian sentencing laws and militate against ongoing reform effort."

The effect was perhaps most stark in the case of Democratic legislators in rural areas with substantial prison populations. Even though the national Democratic party is in favor of prison reform and reducing prison numbers, local Democratic state legislators with substantial prison populations in their districts voted against reform efforts 60% of the time.

Keeping prisons filled benefits rural districts in a number of ways in addition to increasing representation, Thorpe explained. Population numbers are used by states to determine grant funding and economic development. Prisoners help rural areas receive more resources from the state. Prisons are also a source of jobs for struggling communities hit hard by globalization and deindustrialization.   

Mass incarceration, then, has created perverse incentives. Imprisoning large numbers of people shifts power to rural communities in which the prisons are located, and gives those communities multiple incentives to keep prisons filled.

To roll back mass incarceration, therefore, may require returning political rights to prisoners. John Pfaff told me that this could be accomplished in a number of ways. "One," he said, "is to still deny prisoners the vote, but have them count for apportionment purposes as living where they came from. So, keep more political power in cities even if prisoners themselves can't vote." This is the path that New York State has taken in recent years.

"The other option," Pfaff says, "is to give prisoners the power to vote in the places where they're located." And a third option would be to have prisoners count for apportionment purposes in their home communities, and allow them to vote in those communities by absentee ballot.

It's not clear which of these solutions would be best. Thorpe told me that "extending voting rights to people in prison could change political incentives dramatically—especially in rural prison communities where prisoners constitute an outsized share of  local 'residents.'" If prisoners gained the vote in such districts, local conservative politicians would suddenly have a strong incentive to reduce prison populations in order to protect their seats. On the other hand, counting prisoners as part of their home communities would help shift political representation and funding back to cities, and would reduce some incentives for politicians in rural areas to oppose prison reform.

Whatever the solution, the problem is clear. Mass incarceration robs prisoners of political power, and transfers that power to their jailers. This means that jailers have a vested interest in mass incarceration. To change the system, reformers need to do more than just push back against corporations that benefit from the prison system. They also need to reform the political incentives that encourage legislators to vote against change. And the best way to do that is to give prisoners the right to vote.

Noah Berlatsky is a freelance writer and the author most recently of Chattering Class War: Punching Pundits from Chait to Chapo and Brooks to Breitbart