The Violence of Voicelessness

Punishment—when it becomes divorced from notions of redemption, rehabilitation, and proportionality—becomes little more than a poison that diminishes us all.

Felony disenfranchisement had been an interest of mine ever since I received a letter in the mail from the state, telling me that my name had been removed from the rolls of eligible voters because of my conviction.

It was sixteen years ago, but I still remember the sting. Not feeling like I was a part of, anymore, and that my voice didn’t count. Taxation without representation. That sting stuck with me through law school, and in my last year, I wanted to take an election law class but my schedule wouldn’t allow it. Dismayed, I went to the professor and he had an idea: that we could do an independent study, where we would work on writing a law review article with the proviso that we would get try to get it published.

Disenfranchisement interested me, and I believed that it was bad policy. It seemed to me to be counter-productive: you want people to be productive members of society, you want them to feel like they have a stake in their communities. The last thing you want is for people to feel like they can only ever be the worst thing that they have done. I wondered if anyone had ever looked at whether it had an impact on recidivism.

The Violence of Voicelessness: The Impact of Felony Disenfranchisement on Recidivism came into being. What me and my co-author Dr. Matt Vogel¹ found was that states that permanently deprive people of the right to vote have a roughly ten percent higher rate of re-arrest of people leaving prisons than states that do not permanently disenfranchise people. In short, that if you tell people the only thing that they can be is their crime, odds are decent some of them are going to listen to you.

The thing with scholarship is that you never know what kind of a life they live after you give birth to it. The joke in legal scholarship is that law reviews exist for other law students and professors to write their own law review articles, filling in an odd citation here or there. Which will, in turn, be read by other law students and professors doing the same. A sort of legal scholar version of the human centipede.

Today, the federal Fifth Circuit Court of Appeals in New Orleans issued an opinion striking down Mississippi’s law barring for life anyone convicted of a felony from voting, and doing so on Eighth Amendment grounds. I was elated for two reasons: one, I think felony disenfranchisement is an objectively bad and cruel policy and two, in this house we love the Eighth Amendment. Then I read the opinion.

Turns out, it’s not just law professors and students that read those things because the Court cited our work, pushing back against the state’s argument that there are legitimate penological goals achieved by depriving people of the right to vote. If there is some evidence that the policy actually undermines public safety — which there is, thanks to Matt — then it’s more difficult to argue that the state’s interests are being effectively served.

I got my voting rights back in 2019 thanks to Kentucky Governor Andy Beshear which I wrote about for Slate. In that article, I wrote about a lot, but the ethic at the heart of it, and of Violence, is this:

Punishment—when it becomes divorced from notions of redemption, rehabilitation, and proportionality—becomes little more than a poison that diminishes us all.

We exist in a very punitive society. While punishment has its place, we forget that it is only but one place in a landscape of our collective moral duty when it comes down holding people accountable for harms that they cause, and crimes they commit. As Oscar Wilde wrote from the Reading Gaol during his own imprisonment, “[s]ociety reserves for itself the right to inflict appalling punishments on the individual, but it also has the supreme vice of shallowness, and fails to realize what it has done. When the man’s punishment is over … it abandons him at the very moment when its highest duty towards him begins.”

Felony disenfranchisement exists as a part of our tapestry of draconian heritage, and it too, is but one location in that landscape. Mandatory minimum sentences, incarceration of the inform and elderly, LWOP, solitary, public conviction registries including sex and many other kinds of crimes, the death penalty, police violence. Now women seeking reproductive care, and people seeking gender-affirming care, too. It’s all so inextricably threaded through our DNA as a culture, a nation, and a people, that it seems at times insurmountable to unwind. If we perceive a problem, the only thing we know is to hit it with a hammer, and if that doesn’t work, hit it even harder.

And yet, we continue the work of unwinding. The sting I felt, sixteen or so years ago, turned into work, and that work turned into an article, and that article turned into an extremely small role in this case (that my wife tells me I will never shut up about, and folks, she is right).

I simply lack the words to express my satisfaction that the article Matt and I put out into the world did some good, and unless it is not painfully clear to you at this point, I view giving people the right to vote as an unequivocal good. I realize that the Fifth Circuit could hear the case en banc (that is, the entire Court as opposed to a panel), and SCOTUS could take up the case. I would be nervous if either of those things happened.

But, for today, I’m pretty stoked.

Also, I made a meme, for you meme-enjoyers out there.

1. Matt did all the stats work and deserves the credit for the article being something more significant than me bloviating, which I am known to do from time to time as regular readers will undoubtedly attest.