The US Constitution and Incarceration

In the wake of the United States Civil War (1861-1865) fought for the emancipation of enslaved Africans and the elimination of chattel slavery, the 13th, 14th, and 15th Amendments to the US Constitution were passed, with the latter—the 15th Amendment, passed in 1870—guaranteeing African American men the right to vote by declaring that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

Despite this Amendment, enacted on the graves of over a half million soldiers, this guarantee of voting rights for African Americans had to be reemphasized, once again, with the passage of the Voting Rights Act of 1965, signed into law by President Lyndon Johnson on August 6, 1965, which sought to overcome legal barriers at the state and local levels that prevented African Americans from exercising their right to vote under the 15th Amendment to the US Constitution.

The United States Department of Justice is a federal executive department, responsible for the enforcement of the law and the administration of justice. As such, its legal basis lies in Article II of the United States Constitution. To aid in these duties to enforce the law and administer justice, the United States Federal Bureau of Prisons (BOP), a subsidiary of the U.S. Department of Justice, was established in 1930 — as the agencies web page states — to “provide more progressive and humane care for federal inmates, to professionalize the prison service, and to ensure consistent and centralized administration of federal prisons” (“About Us”, 2016).

With 20 US Penitentiaries, 65 Federal Correctional Institutions[1], 13 Private Correctional Institutions[2], seven Federal Prison Camps[3], 19 Administrative Facilities, and 15 Federal Correctional Complexes, and multiple state and local prisons, jails, and detention facilities, the United States currently detains over two million prisoners each and every day, the world’s largest prison population on earth. China, with 1.3 billion total population compared to the US population of 321 million, is second with 1,548,498 prisoners (United States vs. China, 2016; World Prison Populations, 2016).

While “an estimated 65 million people in the United States have criminal records,” Blacks and Latinos comprise 71.4% of the total US federal prison population (Prison Statistics, 2016; Hernández, et al., 2015). As of September 2016, there are a total of 192, 628 federally-confined inmates, almost an eight-fold increase since 1980, with 156,778 inmates confined in BOP-operated facilities, 21,834 in privately-managed facilities, and 14,016 in “other types of facilities” (Prison Statistics, 2016). Since less than two hundred thousand inmates reside in federally-operated facilities, this means that of the two million plus total US prison population, over 1,800,000 inmates are housed in state and local detention facilities.

Four general theories have historically been advanced as justification for sanctioning the punishment of criminal behavior: deterrence, just deserts, incapacitation, and rehabilitation. The impetus behind deterrence is to make crime too costly for criminals to engage in it. Just deserts introduce the notion of proportionality such that one’s punishment should be commensurable with the moral gravity of the crime committed. Incapacitation, i.e. incarceration, removes law breakers from society, either permanently or temporarily. If incarceration is temporary, then offenders are deemed to have “done their time” and “paid their debt to society” for the offense committed and may now, once again, enjoy the rights and privileges of citizenship. As such, temporary incarceration suggests the possibility of rehabilitation (Muhlhausen, May 27, 2010). Societal chastisement, in the form of incarceration, is thus a penalty exacted from those who transgress the law, on the theory that humans are capable of learning from their errors.

While temporary incarceration and the theory of rehabilitation exist in the US criminal justice system, it is notable that ten US states permanently bar felons from ever voting once convicted, even after their sentences are completed. Twenty states restore inmate’s voting rights after they have served their time, parole, and probation; four states restore voting rights after inmates have served their time and parole; 14 states after incarceration is served; and in two states, viz. Maine and Vermont, felons may vote absentee while in prison (State Felon Voting Laws, 2016).

Recently, in the state of Virginia, Governor Terry McAuliffe (D-VA) restored voting rights to more than 200,000 former felons in April of 2016 only to see that state’s supreme court, only three months later, in July of 2016, agree with Republican legislators who had filed a petition accusing the governor of exceeding his authority. As Horwitz and Portnoy state: “The Democratic governor’s decision particularly affects black residents of Virginia: 1 in 4 African Americans in the state has been permanently banned from voting because of laws restricting the rights of those with convictions” (Horwitz and Portnoy, April 22, 2016). Thus, what is the basis for the non-restoration of voting rights once a criminal has served her or his time? Is there any merit to this denial or is it simply another method of racial discrimination?

In Virginia, as with so many states, the U.S. criminal justice system operates largely on a racialized basis, not only to maintain the class divisions within the larger society, but, as well, to divide prison populations amongst themselves. Because a disproportionate number of African Americans and Latinos are incarcerated in the United States and denied voting rights once their prison sentences are served, this effectively disenfranchises much of the working class in America, thus allowing the controllers of capital to rule with few checks to their aggrandizement of power and wealth. As such, the stigmatization of felons by permanently rescinding their voting rights in a number of states, constitutes a key indicator of how class rule is maintained in the United States.

 

 

 

[1] The five Federal Correctional Institutions in the State of West Virginia include prisons in Beckley, Gilmer, Hazelton, McDowell, and Morgantown. It is interesting to note that compared to West Virginia’s five federal correctional facilities, California has a total of six and New York has only two.

[2] These private FCIs are run by either Corrections Corporation of America, Management and Training Corporation, or the GEO Group, Inc.—the latter which maintains facilities in North America, Australian, South Africa, and the United Kingdom.

[3] West Virginia hosts one federal prison camp at Alderson, WV.

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