by Peter Wagner,
December 8, 2002
We just completed scanning and converting a groundbreaking thesis on disenfranchisement written by Jon Yount, a prisoner in Pennsylvania. The March 1998 piece, Felon Disenfranchisement: Pennsylvania’s Sinister Face of Vote Dilution discusses disenfranchisement, racial disparities, the Voting Rights Act and the census-based dilution of minority and urban voting strength. After this thesis, Jon Yount drafted the complaint that led to striking down Pennsylvania’s unconstitutional 5 year waiting period for ex-felon voting registration.
by Peter Wagner,
November 4, 2002
By KIRK MAKIN
Globe and Mail Update Thursday, October 31, 2002
The Supreme Court of Canada has granted convicts in penitentiaries the right to vote.
In a 5-4 decision on Thursday, the court said a federal law that punishes prisoners for their misconduct in society is wrongheaded and more likely to undermine their respect for democracy than to enhance it.
“The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote,” Chief Justice Beverley McLachlin wrote for the majority. “The idea that certain classes of people are not morally fit or morally worthy to vote and to participate in the law-making process is ancient and obsolete.”
The ruling was a victory for Richard Sauve, convicted of first-degree murder almost 25 years ago in the shooting of a biker in Port Hope, Ont. Mr. Sauve was joined by several other inmates and inmate committees in his constitutional challenge.
Punishment must serve a valid criminal-law purpose and must not be arbitrary, the majority said. Yet, the government failed to produced “any credible theory” to justify using such an essential right as a method of punishment, they said.
In reasons that bristled with indignation, Chief Justice McLachlin said vague philosophical musings do not begin to form a valid basis for denying citizens their right to vote.
“The government cannot use lofty objectives to shield legislation from Charter scrutiny. As to a legitimate penal purpose, neither the record nor common sense supports the claim that disenfranchisement deters crime or rehabilitates criminals.”
She referred to the government’s rationale as “a novel theory” that would permit elected representatives to exclude citizens who have a right to equal participation in a democracy.
“To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility,” the majority said. “This history of democracy is the history of progressive enfranchisement. The universal franchise has become, at this point in time, an essential part of democracy.”
The Court’s ruling in Sauvé v. Canada
by Peter Wagner,
October 20, 2002
Invisible Punishment: The Collateral Consequences of Mass Imprisonment, edited by Marc Mauer and Meda Chesney-Lind, just published by The New Press, reveals how the two million imprisoned Americans and their families are being punished by factors well beyond incarceration. Leading scholars and advocates explore the far-reaching consequences of thirty years of “get tough” policies on prisoners, ex-felons, and families and communities. The contributions in Invisible Punishment define the boundaries of a new field of inquiry concerning the impact of American criminal justice policies.
by Peter Wagner,
August 1, 2002
Appeared in the August 2002 issue of the Albany NY’s Center for Law and Justice newsletter.
By Peter Wagner
New York’s budget is in crisis and prisons are a huge drain on limited resources. But when the budget- and humanity-busting 30-year-old Rockefeller Drug laws come up for review, the Legislature can’t agree on a plan to roll back these draconian drug laws. Drug treatment is cheaper and more effective than prison, but somehow the Legislature can’t find the will to save the budget and pass drug reform.
Besides the usual economic interests that accompany every bloated government program is something else subverting democratic decision making in New York State: in violation of the State Constitution, prisoners are counted for purposes of representation in the rural towns that contain their prisons. As a result, whole communities are disenfranchised from their rightful share of political power.
The Census counts prisoners were they are incarcerated, and the state uses Census Bureau population data to draw legislative boundaries so that each district will be “equal” in size. Prisoners aren’t allowed to vote, but their presence in upstate communities swells the otherwise declining population of the region.
While only 24% of New York prisoners are from the entire upstate region, over 91% of prisoners are incarcerated there. On a personal level, prisoners shipped upstate for incarceration “reside” there in only the most physical terms: the lives that prisoners must leave behind, their homes and families remain in the communities the prisoners originated from, the communities that almost all prisoners will return to on the day of their release. On a political level, it is the urban minority communities ravaged by the war on drugs that have the greatest desire to see drug law reform.
Opposing these urban communities have been the upstate prison legislators. Some of the strongest proponents of prison expansion have been upstate Republican Senators Volker and Nozzolio, heads of the Committees on Codes and Crime, respectively. Prisons are big business in their districts, and they have been using their Committee perches to lead the fight against repeal of the Rockefeller Drug Laws that caused the prison boom in the first place. The prisons in their two current districts account for more than 23% of the state’s prisoners.
Of Volker’s constituents, 3% are incarcerated (4% of his adult population is in prison). Of his “constituents” who are Black adults, over 75% are disenfranchisd. Thanks to the traditional gerrymandering in New York, Volker’s district is smaller than it should be, but with 8,951 prisoners he can safely ignore, Senator Volker can devote himself to the needs of his real constituents with a kind of individual attention that his urban colleagues can not. Lest readers think this is hypothetical or hyperbole, consider who prisoners can turn to for help: the local senator or their senator from home? Senator Dale Volker told Newhouse News Service he does get letters from prisoners with a variety of complaints, but that his real attention is directed toward corrections workers, with whom he has forged strong relationships. So much for the idea that legislative districts are drawn to protect common “communities of interest”.
Because 65.5% of prisoners are from New York City, but only a few small prisons exist within the city, 43,740 city residents are counted as upstate residents. This is a boon to prison legislators, as its concentrates their power base. Said Rhode Island State Representative Peter Palumbo of his own similar asset: “All these years the prison has caused me grief with my constituents. Now maybe it will help with redistricting.”
If the legislature wanted to fairly and democratically address pressing issues like rural unemployment, urban crime, the budgetary crisis and drug addiction, the legislative districts would be drawn on the basis of actual population. Counting prisoners at their homes and not in their cells is the only way to ensure that issues of crime policy and rural unemployment are resolved fairly by advocates from the communities actually affected. Allowing white rural prison communities to appropriate urban minority residents for the purpose of representation runs counter to any idea of equal protection under the law.
While this census and redistricting practice appears to to violate the one-person one-vote guarantee of federal constitutional law, it most definitely violates the New York State Constitution which states: “no person shall be deemed to have gained or lost a residence, by reason of his presence or absence … while confined in any public prison.”
In 1894 a vagrant living at the Tombs jail named Michael Cady, on one of his paid errands outside the jail tried to register to vote using his Tombs address. Under that provision of the state constitution, Cady was arrested and convicted of illegal registration. Not for registering to vote — since that was legal given Cady’s commitment was for vagrancy — but for using the Tombs address. You can not live in a prison, you must have lived somewhere else before or plan to after, argued the prosecutor. The trial judge, jury and the state Court of Appeals agreed with the prosecutor.
It is certainly ironic that the New York State Constitution required imprisonment for individuals who use prison as a residence in just the same manner that the state legislature allocated residence to the 71,466 state prisoners counted by the Census.
Peter Wagner is Assistant Director of the Prison Policy Initiative and the author of “Importing Constituents: Prisoners and Political Clout in New York” which can be viewed at: http://www.prisonpolicy.org/importing.
by Peter Wagner,
August 1, 2002
To the editor of the Hartford Courant:
Your story “Study Of Prison Project Impact Promised” reports that 6
residents spoke out at Somers Town Hall on Wednesday against a proposed
prison expansion, and only one in support. That resident said the town
needed “money for our tax base”. Unfortunately for the town of Somers,
government facilities like prisons don’t pay property taxes.
According to a Bureau of Justice Statistics Report released on Tuesday, the
number of state prisoners nationally is declining. Connecticut is alone
among its neighbors in continuing to add to its prison population. As other
states are learning, sentencing reform and reducing the number of prisoners
eliminates the need for expensive new prisons and makes limited state
dollars available to communities for more productive development projects.
Prison Policy Initiative
August 1, 2002
by Peter Wagner,
July 15, 2002
The cover article of July/August, 2002 issue of “The Crisis” Magazine, (NAACP national publication) is on how rising incarceration is spilling over
into critical arenas of black political (electoral) and economic power, i.e. affecting the lives of African-Americans not under criminal justice control. Key issues focused on are felony disenfranchisement and the impact of census prisoner-counting practices on redistricting, as well as the relationship between those phenomena and post-reconstruction initiatives designed to take away from the newly enfranchised what had just been granted…
The article discusses the Importing Constituents: Prisoners and Political Clout report about the census counting urban prisoners as rural residents.
An internet version of the article is not yet available but you can order a hard copy from Crisis Magazine.
by Peter Wagner,
June 24, 2002
The Supreme Court today invalidated the death sentence of Timothy Ring because although the jury voted for life, the judge sentenced him to death. Between 180 and 800 death sentences will be invalidated by this decision.
Justice O’Connor wrote a dissent where she argues in part that she opposed reversing Ring’s death sentence because it would also reverse many other death sentences. To paraphrase the late Justice Brennan: What does O’Connor fear — too much justice?
by Peter Wagner,
May 30, 2002
Crime Control as Industry
By Nils Christie (2000)
Review by Peter Wagner
Originally submitted to Prison Legal News on May 9, 2002
The heavily revised third edition (2000) of Crime Control As Industry: Towards Gulags, Western Style is an essential guide to understanding the incarceration boom and considering how we can turn it around. The first book of Norwegian criminologist Nils Christie, Limits to Pain, argued that the criminal justice system is in fact a pain delivery system, with the size of the system controlled not by the number of committed acts labeled as crimes but by the amount of pain that a society is willing to impose on its citizens. Crime Control as Industry expands upon that theme, and tracks how an industry has arisen to manage crime. And like any industry, the crime control industry is not about to say on its own: “Stop, we have enough of the market. We don’t need to grow.”
Christie does an important job providing an international perspective to incarceration, comparing disparate incarceration rates between otherwise similar European countries. Hope can be found in his story of Finland becoming accustomed to a high level of pain delivery and then deciding in the 1970s that its incarceration rate associated the country more with its enemy the Soviet Union than with its political allies in Western Europe. Finland’s incarceration rate quickly dropped from the highest in Europe, to the second lowest after Iceland at 54 per 100,000.
Christie traces the extent to which crime control has come to dominate the economic structure by absorbing the unemployed into the roles of keeper and kept and then supplying services to each. Limited by space, let me highlight two of Christie’s many sharp observations. First Christie argues that the applicable political economy to describe prisons is not slavery, but of the old work-houses, where the objective was not profit for the State, but for private parties to relieve the State of its unwanted population at the lowest cost possible.
The second sharp observation is that justice itself has been mechanized to cope with the influx of raw materials and remove a democratic restraint upon growth. Mandatory minimums and the sentencing guidelines have served to remove discretion from judges, turning them into little more than secretaries for the legislature. While judges are in a unique position to learn details about victims and the accused; and could adopt sentences to match the needs of the offender and the community; that takes time. Time costs money, and the industry’s conveyor must be kept moving, hence the removal of judge’s discretion.
In the United States, the combined populations in prison, on parole and on probation exceed the incarceration rate of the old gulags. Christie’s excellent book asks: Do we want a societal culture with this much depersonalized pain delivery?