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The Weekly Abolitionist: Prisons and the Myth of Democratic Legitimacy

It’s election day in the USA. The mass incarceration nation is deciding which political opportunists will rule. On the state and local level, citizens are casting their votes on ballot initiatives that will determine the structure, specifics, or application of state coercion. Some of these ballot initiatives probably deserve support from prison abolitionists, specifically initiatives to reign in the disastrous war on drugs. Other initiatives create new prohibitions and restrictions on human liberty, and ought to be opposed.

But I think it’s worth looking beyond ballot initiatives and the particulars of this election cycle, and instead examining how elections intersect with the prison state. One obvious intersection is felon disenfranchisement. According to the Sentencing Project, “an estimated 5.85 million Americans are denied the right to vote because of laws that prohibit voting by people with felony convictions.” There are major racial disparities in this disenfranchisement, “resulting in 1 of every 13 African Americans unable to vote.” These disparities are exacerbated by what the Prison Policy Initiative calls prison-based gerrymandering. In many states, prisoners are counted on the census not for the communities or regions they have been forcibly taken from, but for the community in which the prison is located. This dilutes the voting power of black communities and other communities torn apart by mass incarceration. Moreover, it increases the voting power of communities that receive concentrated economic benefits from prisons, such as communities where prison guards live.

The result is that those most directly harmed by the state have no vote on how it is operated. Those who spend their lives not interacting in the voluntary sphere of communities and markets but under the constant power of the state’s prison guards get no vote regarding the government that controls the prisons. Those who have had their friends, family, and community members taken from them and locked in cages have their voting power diluted through prison based gerrymandering. And when prisoners are released, they typically remain disenfranchised. While the violence of the law has taken years of their life from them, and licensing laws restrict them from entering many professions based on their criminal records, they have no vote on the government that forcefully impacts their life. Clearly, the government does not operate with the consent of those who are most brutally governed by it.

My friend Ørn Hansen points out that this ought to seriously undermine arguments about every American having a duty to vote, writing:

Before you call people out for not voting or you call people stupid or worthless or privileged for not voting, remember that some of us people are legally prohibited from voting because of legal issues. Your system is a sham and cuts out a large portion of people from it because they have been convicted of certain crimes or because they don’t have certain forms of ID. Maybe that’s why we don’t trust your system: because they don’t want to hear from us.

The system excludes people from participating in its elections, and then the system’s sycophantic lapdogs blame and shame them for not participating in the state’s grotesque decision making rituals. Of course, it’s worth noting that even if everyone ruled by the U.S. government were permitted to vote, there would be no duty to vote, as Jason Brennan explains.

Just as mass incarceration impacts how electoral processes work, electoral processes have played a key role in the rise of mass incarceration. As the federal government gained control over sentencing policy and other criminal justice issues, crime became a key election issue. According to the National Research Council,  “The two parties embarked on periodic “bidding wars” to ratchet up penalties for drugs and other offenses. Wresting control of the crime issue became a central tenet of up-and-coming leaders of the Democratic Party represented by the center-right Democratic Leadership Council, most notably “New Democrat” Bill Clinton.”  These frenzies of punitive power tend to reach a boiling point in the lead up to elections. The National Research Council’s report notes that “the U.S. House and U.S. Senate have been far more likely to enact stiffer mandatory minimum sentence legislation in the weeks prior to an election. Because of the nation’s system of frequent legislative elections, dispersed governmental powers, and election of judges and prosecutors, policy makers tend to be susceptible to public alarms about crime and drugs and vulnerable to pressures from the public and political opponents to quickly enact tough legislation.”  Electoral politics likewise tends to make prosecutors and judges behave in more punitive ways. “In the United States, most prosecutors are elected, as are most judges (except those who are nominated through a political process). Therefore, they are typically mindful of the political environment in which they function. Judges in competitive electoral environments in the United States tend to mete out harsher sentences.”

So democratic participation in elections in a sense gave us mass incarceration, a policy that has disenfranchised and excluded many from participating in electoral democracy. Yet this disenfranchisement is one of the least destructive impacts of  mass incarceration. Rape, torture, murder, the caging and abuse of children, forcible denial of basic health care, the rich and well-connected stealing from the poor, and countless other atrocities mark the true costs of the carceral state. No election, no public opinion poll, no amount of political participation can make this just or acceptable. Even if all the prisoners and their families were given full voting rights, Lysander Spooner‘s words would ring true: “A man is none the less a slave because he is allowed to choose a new master once in a term of years. Neither are a people any the less slaves because permitted periodically to choose new masters. What makes them slaves is the fact that they now are, and are always hereafter to be, in the hands of men whose power over them is, and always is to be, absolute and irresponsible.”

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