by Peter Wagner, November 30, 2000

[For an analysis of the size of the disenfranchised population and its large racial disparity, see my October 2004 report Jim Crow in Massachusetts? Prisoner disenfranchisement.]

On November 7, 2000, by a 2 to 1 margin, Massachusetts disenfranchised its prisoners with a constitutional amendment called Question 2. Question 2 marked the first time that the Massachusetts constitution has been amended to take away rights from a group of people.

Maine and Vermont are the only states that allow prisoners to vote. Thirteen states bar felons for life, and many other states also restrict voting rights of those on parole or probation.

Prior to November, one in eight Black adult men were denied the vote in the United States. Massachusetts’ Black prisoners will now add to this number. Unfortunately, Massachusetts is not alone in the reactionary movement to disenfranchise prisoners. In 1998, Utah voters stripped prisoners of the right to vote.[1] In March, the New Hampshire Supreme Court reinstated that state’s ban on prisoner voting after a lower court decided that the ban violated the New Hampshire constitution.[2]

Disenfranchising prisoners and ex-felons is not without impact to the electoral system. The permanent disenfranchisement of felons in Florida may have given the election to George Bush. When the Supreme Court ended the Florida recount, Bush won that state by only 537 votes.[7] In Florida, Bush won the white vote, 57% to 40%, but Gore won the black vote, 93% to 7%.[3] Blacks make up one-third of all disenfranchised people in Florida.[4] Even a small turnout by prisoners and ex-felons could have changed the balance of Florida and therefore the national election.

More importantly than changing outcomes, at least in terms of legal strategy, is the effect of felon disenfranchisement laws on Blacks. In the United States, 2% of the adult population is disenfranchised, but for Black men the rate is 13.1%.[5] In Florida and Alabama the Black adult male rate is over 31%. Prior to a 1982 Voting Rights Act amendment, proof of discriminatory intent was necessary to strike down a state law disenfranchising voters. The 1982 amendment clarified the law to hold discriminatory effects to be adequate proof.[6] This avenue has not been completely litigated.

However, in the political sphere, more use can be made of public policy arguments. Disenfranchising prisoners serves no purpose under any theory of criminology and serves negative purposes under some theories. Under deterrence theory, prison itself is the deterrent, and denial of the vote pales in comparison to denial of physical freedom. Crimes are not prevented under threat of losing the vote. Felon disenfranchisement can’t be called a form of retribution because it’s universally given to felons regardless of their sentence, and in some states continues after the sentence until death. The last defense of the disenfranchisers is often an argument to defend the “purity of the ballot box” against fraud. But most prisoners are not in prison for election offenses, and there is no evidence to suggest that prisoners would commit electoral fraud more than non-prisoners. Rather, these defenders hint that prisoner’s could vote in blocs or overturn criminal laws. These reactionary arguments fail given the historically low voter turnout of Massachusetts and Maine prisoners. In addition, it is blatantly unconstitutional to deny people the vote based on what they may vote for.

Disenfranchising prisoners works against any efforts at rehabilitation. Studies have shown that allowing prisoners to gain an education and increase family visits reduces recidivism. Participation in the political process similarly increases the prisoner’s integration with the outside society.

“Getting tough on criminals” may be politically popular in Massachusetts, but if the citizens of Massachusetts want to actually do something about crime, they are going to need to stop demonizing prisoners and start looking at why crime happens in the first place.


1 “A key non-voting bloc: felons” Gannett News Service November 17, 2000

2 Fischer v. Governor, 749 A2D 321

3 The San Francisco Chronicle November 15, 2000, Pg. A23.

4 “Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States” (1998) Sentencing Project, 514 Tenth Street NW Suite 1000, Washington DC 20004, p. 9.

5 Ibid.

6 Alice E Harvey, Ex-felon disenfranchisement and its influence on the Black vote: The need for a second look. University of Pennsylvania Law Review, January 1994, 142 U. Pa. L. Rev. 114

7 The Nation April 30, 2001, p. 11

[An earlier version of this article was published in Mass Dissent, a publication of the Massachusetts National Lawyers Guild.]

by Peter Wagner, April 1, 2000

Originally published in the April 2000 issue of Mass Dissent.

By Peter Wagner

The Rebellious Law Conference at Yale in late February sponsored a lively panel on how the state oppresses those with disabilities. The new welfare law denies the disabled benefits. Despite the fact that prisons cost more and are less effective than treatment, state governments have slashed mental health budgets to build more prisons. The result has been more public demonization and oppression of the mentally ill.

The Rebellious Lawyering 2000 Conference was held at Yale Law School on February 25-27. The opening address was by UCLA School of Law Professor Gerald P. Lopez, author of Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice. The keynote address was by Peter Neufeld, co-founder and director of “The Innocence Project,” which currently represents more than two hundred prisoners seeking post-conviction release through DNA testing. Four WNEC students attended the conference.

The theme of the Rebellious Lawyering conference was “Innovative Advocacy for a New Millennium.” Explicitly or indirectly, all of the speakers talked about why lawyers and law students need to think “outside the box” of traditional legal work, be it in challenging oppressive laws or challenging traditional — and sometimes ineffective — methods of standard leftist organizing. All the speakers stressed the importance of serving our clients, an unfortunately radical concept in the legal profession.

Early on the afternoon of the 2nd day, a “Disability and the State” panel discussion was held.

Russ Overby of the Tennessee Justice Center described his work trying to get disabled clients exempted from the welfare and workfare requirements of Tennessee. Overby and Heather Barr of New York City’s Urban Justice Center explained how the welfare program’s purpose is to frustrate people so they will leave the welfare rolls, and not to help them get jobs. For example, the welfare office will require a large number of appointments before benefits can be received, and the workfare requirements of 40 hours of “volunteer” work do not take into account the difficulties the poor have with transportation and childcare.

A variety of different studies were cited by Overby, showing that 40% of families on welfare have a long term functional disability; another that 23% had psychiatric disorders and a third said that 75% had slight to severe mental health problems. According to Overby, welfare clients are reluctant to disclose their medical history to the State, so the exact number of people with disabilities who are on welfare is unknown.

But the lack of data is not the problem with the workfare requirements. While federal law does allow a number of people with documented disabilities to be exempted from the workfare requirements and 5 year limit on benefits, even the National Governors Association concluded that the number of people with disabilities outstrips the number allowed to retain their benefits.

Russ Overby criticized politicians for claiming that because the welfare rolls are down, that poverty must have been defeated. To Overby, that’s “like curing the measles by painting over the spots. The research about the numbers leaving the rolls does not address the question of where those families go.”

“Rikers Island is the largest psychiatric facility in the country” began Heather Barr of the Urban Justice Center’s Mental Health Project, where she does advocacy for people with mental illness who are in the criminal justice system. Barr summed up the state policy since the 1970s: “we demolished the mental health system at the same time we skipped merrily down the path of criminalizing everything.”

Years ago, behavior that would have been considered annoying, such public urination, is now treated as a criminal offense — including in a city like New York without public toilets. Other mentally ill people are arrested for public drinking or panhandling. Barr reported that when she sees arrest reports that read “resisting arrest and disorderly conduct” the likely truth is that a person was talking to himself and the police told him to move along and he didn’t.And like the rest of the prison system, there is a general exemption for white people when it comes to ending up in prison. As Barr pointed out, behavior that would land a Black or Latino in prison will often not lead to prison for a white person.

Rikers Island holds 20,000 prisoners, or 130,000 over the course of a year. Around 20% of those have a serious mental illness, and 80% have substance abuse problems. The Federal DOJ estimates that 16% of all prisoners are mentally ill, and NY State estimates 10% of its prisoners are mentally ill. But Barr takes those numbers with “serious skepticism” as they count only those who have been diagnosed and receive treatment, whereas many are ignored by the system.

New York State has quite openly replaced it’s mental health hospitals with prisons. [See Chart 1] Ms. Barr believes that many of the people released from the closed state hospitals are the same people who are now incarcerated in the state prisons. When the hospitals were closed, the state merely released the patients into the streets without building community centers or other resources. Ms. Barr also warned that deinstitutionalization is not something confined to the 1960s or 1970s, but rather continues today, with
500 hospital beds closed in New York State last year. At the same time, New York allocated $360 million for 2 new supermax prisons with psychiatric wings.

Chart 1

93,000 in NY State Hospitals
12,500 in NY State Department of Corrections

5,000 in NY State Hospitals
72,000 in NY State Department of Corrections.

Prison costs society more than “crime”

Ms. Barr is currently representing a man charged with jumping a subway turnstile, denying the city $1.50. The prosecution’s deal? One year in prison. This would cost the state $69,000 for his incarceration. This is clearly not a rational way to deal with the cost to society of a jumped turnstile.

Former Rikers Island and Attica prisoner and manic-depressive David Gonzalez explained that he is now in a program that subsidizes his housing to the cost of $34 a day. The subsidized housing creates a personal stability which makes it possible to remain free of drugs and alcohol and receive treatment for his manic-depressive disorder. For the cost of $34 a day, society gets another productive member, in this case a strong advocate for the mentally ill with the Urban Justice Center. The other alternative, espoused by many politicians, is to pay for society-denying incarceration at more than twice the price.

Prison is a harm, not a treatment.

Heather Barr described what happens when the mentally ill go to prison. Mentally ill prisoners are frequently victimized and isolated. When they are unable to follow the rules, punishment often takes the form of segregation — 23 or 24 hours a day locked in your cell alone.

During one visit with the prison watchdog group Correctional Association of New York to the Attica Prison’s Special Housing Unit, Ms. Barr was unable to talk to some of the prisoners because of plexiglass covering the bars. The only method of communication was through yelling. When asked about the glass, the guards explained: “that’s for the shit throwers.” But this was half the cells in the SHU! Many of the prisoners were screaming or in a catatonic state, and the guards acted liked this was normal. When human beings are reduced to throwing their excrement to express themselves, that shows a clear failure of society to address the basic needs of its citizens.

While the New York Department of Corrections boasts of its treatment programs and state of the art medicines, all of the prisoners Ms. Barr has spoken to report that they are taking older, cheaper medications. Newer medicines have been proven to be more effective.

Barr is currently suing the City for it’s failure to do discharge planning for mentally ill prisoners. Prisoners from Rikers Island are dropped off very early in the morning with none of the medicine they were taking, no prescription for that medicine, no referrals to mental health clinics and no referrals to shelters with mental health services. They are given only $1.50 in cash and a $3 metro card. While the ex-prisoners would be eligible for Medicaid to pay for medication, it takes 3 months to get a Medicaid card. In response to a question suggesting a prioritization of getting funding for mental health services at homeless shelters over those for ex-prisoners, Barr explained that it’s the same people, with 6 or 7 of those in her lawsuit currently homeless. Outside of prison, there are essentially no services for the mentally ill.

In New York, there are no alternative to incarceration programs that are available to people with mental illness. If you are on medication, the programs will not accept you. To that end, Ms. Barr is the director of new pilot program to provide alternatives to incarceration for mentally ill felony offenders.

Demonization of the mentally ill

Gonzalez described the media backlash after a mentally ill man in New York threw a woman in front of a train. In response to the murder, New York passed “Kendra’s law” by which the mentally ill can be subject to court ordered “Involuntary Outpatient Treatment”.

But in the Kendra case, the man wasn’t refusing treatment. The underfunded system refused him 13 times in the 2 years prior to the murder. Kendra’s law doesn’t provide for more services, just more repression, and targets all of the mentally ill, not merely those prone to violence. The purpose of this law is to increase repression of the mentally ill and equate all mentally ill people with the person who committed this murder. And as Gonzalez pointed out, studies have shown that mental illness is less accurate a predictor of violence than having recently lost your job. And certainly no politicians are proposing that fired employees receive medication against their will. But the mentally ill are a population much easier to stigmatize.

The discussion section took two directions on how to strategically fight the stigmatization of the mentally ill. The first prong continued a criticism of how the power structure can use and abuse the label of mental illness to further weaken the oppressed. As Gonzalez pointed out, the label of “insanity” is used against the most radical people or to justify divorce.

Audience members repeatedly put forth the analysis that mental illness and disabilities in general are environmentally defined. Environmental stresses and demands create disabilities, and society continually changes the line between ‘annoying’ and ‘criminal’ to serve its larger purpose.

The second prong about how to keep the prison system off the backs of the mentally ill without further stigmatizing the mentally was more contentious.

Ms. Barr reported that the conservative New York Post supports her lawsuit because they don’t want the mentally ill being deposited in people’s neighborhoods by the prison system. Even putting the words “criminal” or “criminal” justice in the same sentence with “mental illness” will allow the mainstream press to twist your words. So while this kind of support makes her nervous, it’s also true that the mayor probably reads the Post. If the immediate goal is to get services for the mentally ill, it may not be
negative if other people support or grant it for their own, negative, reasons.

The most animated part of the discussion was whether using mental illness as a defense to keep the mentally ill out of prison serves to help the mentally ill as individuals or further stigmatize them as a group. A number of audience members and ex-prisoner Gonzalez argued that this creates a double standard and would increase stigmatization. Ms. Barr responded that she is a prison abolitionist, and doesn’t want to see anyone go to prison. Keeping people out of prison entirely — mentally ill or not — is more important than the question of discharge planning, but Ms. Barr could not find a legal theory to base that important goal on, hence her lawsuit.

Ms. Barr returned to the fact that prisons are not an effective way to treat mental illness. The fact that the prisons are disproportionately Black and Latino should make the fact that behavior is not a predictor of imprisonment clear.

Ms. Barr summed up the issue at the end of the session: “This is a problem of services, not a legal problem. Alternatives to incarceration are needed.

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