Photo by Larry Farr on Unsplash

I sided with Bernie Sanders last election. If there was a political label that put me off, it was not “socialism.” It was “Democratic Leadership Council,” which I understood to represent the epiphany that Democrats could win if they sounded enough like Republicans. Of course, the DLC was formed to do battle with Republicans, defined as a political party favoring management rather than labor, investment banks rather than commercial banks, a strong military and distrust of the Soviet Union. I don’t agree with much of the conventional Republican platform, but I’ve read their literature and I know their history and I share it from a slightly different perspective.

The GOP has been displaced by a personality cult, but I’d like to offer a narrative that may be useful to folks making conventional arguments about policy in which things matter in addition to Donald Trump’s desiderata.

Allowing felons to vote where they live is not the same thing as allowing students to vote where they live and some objections to such a policy are well-founded. I won’t say the prison vote is the hill Bernie has picked to die on but it certainly is true that his position lends itself to the customary thirty seconds of bullshit, so he’s put a lot more votes in play than he may have intended.

I have heard Bernie use the terms “jail” and “prison” interchangeably, as if the only meaningful classification is “prisoners.” That’s not so.

Jail inmates are typically awaiting trial on felony charges or serving time for misdemeanor convictions. Those in pretrial detention usually outnumber those serving time and of course they should be allowed to vote with an absentee ballot. Residence for voting purposes normally means physical presence with intent to remain indefinitely. Persons in pretrial detention do not intend to remain and, even if they did, I presume they would be chucked out the door when their cases are ended because jail beds are way more expensive than the Holiday Inn.

Pretrial detainees cannot have lost their right to vote because they have not been convicted of a crime but their right to vote is a right to an absentee ballot from wherever they are registered and a right to access voter registration materials if they are not registered. Jails are normally not located a great distance from the courts that determined who would be in the jail population, so the difference between voting at the jail and voting at home is one of precinct. Allowing homeless inmates to list the jail as their residence should be no big deal.

I do not think the voting rights of pretrial detainees are on the table for policy arguments. I think the law requires that pretrial detainees who wish to vote must be accommodated.

The first place we could have a policy argument would be the rest of the jail population: persons convicted and serving time for misdemeanors. I suspect this is not as controversial as it might sound. I know of no state where a misdemeanor conviction takes away the right to vote.

If convicted misdemeanants retain the right to vote, then I’m not clear why they should lose the right to an absentee ballot. They certainly have not lost the right to an absentee ballot unless there is a law on the books that says so or that expressly delegates the power to decide who gets to vote to the sheriff.

So the policy argument is — or should be — isolated to prisons, which typically hold persons convicted of felonies who are serving their time. Persons under death sentence or life without parole are probably in a special category because they are not “serving their time.” They are intended to die in prison; those with a death sentence just die sooner.

The content of the classification “felon” is in our times up for debate. At common law it was not, since all felonies were punishable by death. Royal reprieves were common and got more common over time, but at first felons were outlaws — literally, outside the protection of the laws. It was always allowed to kill a fleeing felon, whether fleeing the scene of the crime or fleeing the place of incarceration. The killer was merely cutting out the middleman, the judge.

A person accused of a felony and released on bail who failed to appear for trial was also outlawed. Failure to come to court renders the bail forfeited to the government; being declared outlaw does the same to all the property of the outlaw. When you are outside the law, it does not protect your property or, for that matter, your life.

There being no law schools in the American colonies, any educated man could hang out a shingle and practice law. Determining who was “educated” was up to the customers. It was common that the only books a lawyer had for reference were Sir William Blackstone’s Commentaries on the Laws of England, published as he produced them between 1765 and 1769. Blackstone defined “outlawry” as “putting a person outside the protection of the law so that he is incapable of bringing any action for redress of injuries; it is also attended with a forfeiture of all one’s goods and chattels to the king.”

English common law was the root of all state legal systems except for Louisiana, which developed in the civil (Roman) law tradition in the years sovereignty was pinging back and forth between France and Spain. The law of the Roman Empire is a root that goes down a bit farther than the law of the Norman Conquest of England, so to opine on European law you have to pick a scholar and a time frame. Ferdinand Mackeldey, writing about a hundred years after Blackstone, said that civil law nations held, upon conviction of a crime, that the rights of citizenship might be wholly lost or simply diminished.

Bernie Sanders is stomping about in the current policy argument in the U.S., which sounds a whole lot like the differences among European nations in the nineteenth century, when Mackelday published Lehrbuch des heutigen Römischen Rechts, an attempt to do for “Roman law” of the time what Blackstone had done for common law.

Current U.S. law is clear that outlawry in the sense of losing one’s life and all title to property is a relic of the past. There, the clarity stops. In 1987, the SCOTUS instructed us, “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”

A judge reading that would be thinking the language is slippery as a squid. A practicing lawyer would be thinking the SCOTUS has written prisons a blank check. Prison administrators would not be thinking, being too busy turning the blank check into cash.

“Legitimate penological interests” are determined by taking sides on policy divides where both sides can cite support in professional, blind refereed literature. My judge’s habits cause me to interrupt this narrative with a statement of my biases, so that readers may discount my words accordingly.

I look at prisoners and know that all, or virtually all, of them are going to get out. So the operative question is, when they get out, will they be better or worse than when they went in? I see the problem as primarily that they have outlawed themselves and they see themselves having no stake in the social compact as it is — sort of like Donald Trump but without the resources to run for POTUS. Voting is an expression of a stake in the social compact as it is or as it can be improved by the right elected officials.

Having offered some of my biases up front, I return to “legitimate penological interest.” I look at reintegration from the minute they go in, but even I can’t totally escape from answering why they are in and those who disagree with my grown up version of “time out” must also offer some reason why prisoners are locked up in the first place.

I see the primary reason for locking up felons as protection of the public and a secondary reason to have a captive audience for the teaching of the fundamental skills required to navigate in these times without going too far outside the law.

Punishment? Sure, as long as the punishment does not stumble over the Eighth Amendment by becoming “cruel and usual.” That means litigation over air conditioning becomes possible after a few inmates die of heat stroke.

I am reminded of a reform committee I did some writing for consulting with a doctor back in 1973 regarding an inmate who had his appendix removed by another inmate whose medical training consisted of shadowing the contract doctor who came to the rural prison unit irregularly. Prison management had been unwilling to summon the contract doc to make a special trip based on an inmate complaint of “a bellyache.”

“Waal,” the consulting doctor drawled, “the close is kinda sloppy, so that scar ain’t goin’ away, but if the internal part had not been done right the guy would be dead.”

Deterrence? I am skeptical of special deterrence (the individual learning not to do it again) because nobody commits a crime planning to get caught. There is some evidence that supports general deterrence (persons otherwise inclined to commit the offense do not because of what happened to those who got caught). The deterrence, if it’s there, comes from the loss of freedom in general.

Retribution? I am not equipped for a philosophical dispute with anybody who thinks two wrongs make a right, so I’ll just observe that, like general deterrence, the function is served by the loss of freedom generally.

Besides housing felons rather than misdemeanants, prisons generally have much larger populations than jails. It’s hard to see a lot of inconvenience in requiring access to absentee ballots and voter registration materials. There are two objections that need to be met head on, and Bernie has so far addressed only one.

The one Bernie is attempting to address, I confess I do not understand. This is the argument over the nature of the offense. The Boston Marathon bomber is held up as an example of somebody who has done something too horrible to be allowed to vote. I can understand a line drawn between those serving life without parole or awaiting execution and all others. I’m not sure I consider it a line worth drawing, but I understand it.

But you have a bank robbery. One of the perps wounded somebody; one merely brandished a weapon; one just held a sack for the money; and one never went inside but drove the getaway car. You are going to let some of these robbers but not all vote? Or none of them get to vote because robbery involves at least a threat of violence?

Bernie has fallen down this rabbit hole and is arguing that violent felons are human beings just like nonviolent felons. That’s true but not terribly persuasive. Of course, it’s not Bernie claiming that voting should be limited to those convicted of crimes not involving violence. This whole objection seems to me goofy and Bernie’s answer just as goofy as the question, but he seems to be content to duke it out.

The objection I have not heard addressed ought to get some attention. Prison terms are measured in years. It’s not clear that all or even most prisoners have any sense of where they are going when they are released. The absentee ballot is often not an option, and that’s a problem.

Many states have sited prisons in rural areas where the land is cheaper. There is either a small town nearby where the prison employees live or one has grown up around the prison. While some prison employees live on the grounds, those who do are normally only the top level bosses. Everybody else is living as close as they can get to minimize commuting costs.

The problem is that if you let all those prisoners vote and, unlike the jails, absentee ballots are not a viable option, the prisoners can dominate every political subdivision in which the prison is situated in rural areas.

While we can all agree that prisoners are human beings regardless of what crime brought them to prison, I’m not sure it follows that I want them picking my school board, my tax assessor, and possibly my mayor. I don’t have any problem with the prison vote picking a seat on the city council or even a state representative, because the whole idea is to give them a stake in the polity that locked them up.

However, the demographics of many rural prison neighborhoods make felons voting while doing time gerrymandering on autopilot. An objection to having all local government dominated by the prisoner vote is not an objection to prisoners voting.

Of course, it’s possible under current law to gerrymander the prisoners to powerlessness. There are cases pending in the federal courts right now about political gerrymandering and I understand the progressive position to be that political gerrymandering is bad. That’s certainly my position.

At the risk of uttering a dirty word, it’s possible to compromise by writing a law that requires all prisoners within one or two years of discharge from prison to be presented with voter registration materials. I can certainly see the “legitimate penological interest” in that.

How about you, Bernie?

Enrolled Cherokee, 9th grade dropout, retired judge, associate professor emeritus, and (so far) cancer survivor. Memoir: Lighting the Fire (Miniver Press 2020)

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