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Incarceration and the Right to Vote: An International Comparative Study

Community Learning posted by Emma Hersom '24

Community Learning Research Fellow Emma Hersom ‘24

with Community Partner James Jeter, Full Citizens Coalition & Faculty Sponsor Professor Anna Terwiel 

Spring 2022, Trinity College, Hartford CT

  • Introduction 

Constitution of the United States of America, Amendment XIII

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction”. 

While many view the Thirteenth Amendment as a landmark decision to abolish slavery, the legal loophole that it includes allows slavery to live on in a slightly different form, in the name of punishment. Radical reconstruction following the war to end slavery was supposed to grant equal citizenship for all, but it has yet to live up to the promises it made decades ago. Instead, the prison system has used the Thirteenth Amendment as a way to reproduce this unequal citizenship, most commonly through disenfranchisement: the denial of voting rights on the basis of a conviction. 

The United States incarcerates more of its population than any other nation in the world, including nations that have similar or higher rates of recorded crime, and it disproportionately incarcerates people of color — particularly Black people. The term commonly used to describe this horrific phenomenon is mass incarceration. Commentators, like Michelle Alexander, author of The New Jim Crow, argue that the rights-deprivation mass incarceration inflicts on Black Americans creates a kind of second-class citizenship that continues the inequalities of slavery. The problem of mass incarceration is simultaneously a problem of citizenship, which some have labeled as civil death: the loss of all or almost all civil rights due to a conviction for a felony or through incarceration, particularly through disenfranchisement. In the US, 2.3% of the voting-age population (5.2 million citizens) is excluded from political participation because voting laws in some states continue to disenfranchise those who have already served their time in prison.1 Taking away the right to vote is especially significant because it is such a key marker of citizenship. Not only do incarcerated people have to grapple with the systemic injustices they inevitably will face while in prison, but once they reintegrate back into society they continue to be treated as undeserving of a status of being fully human participants in society. This is a result of both the social and political stigmatization within US society, and most significantly from the specific legal codes that create civil death. According to Reuben Jonathan Miller, a sociologist who examines how the system prevents many from regaining citizenship in society, “45,000 laws, policies, and sanctions at the federal, state and local level… shape the lives of people with a criminal record” by “restricting them from full citizenship after serving time.”2  

The Full Citizens Coalition asked me to examine the roots of how this problem arose, why CT voting laws for incarcerated people differ from Maine and Vermont, and how/why the United States has so drastically diverged from other progressive but historically problematic, similar nations. Answering these questions required looking at a wide variety of sources: book chapters, podcasts, websites, state databases for legislative history, videos, news articles, and more (see bibliography for a comprehensive list). Crucially, this research highlights the racial roots of US federal and state visions of what voting rights should be, and the alternatives to that, as modeled throughout other nations. 

  • Research Questions 

In light of the problem at stake and Full Citizens’ goals as an organization, my first research question was: Why did Connecticut explicitly choose to disenfranchise incarcerated people, while other northern states like Maine and Vermont did not? 

As an organization advocating for voting rights for incarcerated individuals in Connecticut, the state’s history of felony disenfranchisement is of paramount importance. This research is particularly significant for illuminating the racial and political motives behind why the state explicitly chose to disenfranchise incarcerated individuals, while its whiter counterparts, Maine and Vermont, did not. Pressuring representatives to answer this question is especially important during the 2022 legislative session, with the introduction of Full Citizen’s bill. 

My secondary research question, though equally important counterpart was: How did selected European nation(s) and US models of penal codes and prison systems evolve during the late 1800s, and to what extent were they shaped by different experiences with slavery/reconstruction? 

This comparative study between nations was particularly important for highlighting the context behind Full Citizen’s legislative agenda, and the issue of felon disenfranchisement and the concept of civil death more broadly. Despite similar problematic histories across all selected European nations and within the United States, the social, political, and legislative realities for currently and formerly incarcerated individuals in Norway, Finland and Germany, particularly surrounding voting rights, sharply contrasts with the United States.

Key Findings: Research Question #1: Why did Connecticut explicitly choose to disenfranchise incarcerated people, while other northern states like Maine and Vermont did not?

  • Voting Rights & Disenfranchisement in the US

Felony disenfranchisement refers to the denial of voting rights on the basis of a felony conviction. The most common felony charges are drug abuse violations. Most modern felony disenfranchisement laws originated in the time period after Reconstruction, when post-Civil War constitutional amendments granted the right to vote to Black men. The racist origin of most felony disenfranchisement laws mirrors the expansion of new legal codes that aim to incarcerate African Americans.

Felony disenfranchisement laws vary widely across the U.S. While the Thirteenth Amendment is federal — constitutional — law, many decisions about punishment and citizenship are made at the state level. This often creates confusion or misinformation for people who are incarcerated, whether they lose their voting rights or not.2 The map below shows state-by-state voting rights for formerly/currently incarcerated people, adapted from ProCon.org with the most up-to-date state laws surrounding felon voting.

This map shows that only two states, Maine and Vermont, allow people to vote while incarcerated. While many states restore the right to vote after prison, including Connecticut most recently in 2021, even more states place barriers to voting after prison — barriers that continue to disproportionately impact low-income people of color. In some states, one may lose the right to vote permanently after being incarcerated. Crucially, what this map highlights is that significant work demands to be done surrounding increasing voting rights and access for currently and formerly incarcerated people. Although Connecticut has made progress with their voting rights for formerly incarcerated people, there is still a significant part of the prison population that is eligible to vote through absentee ballots but are unable to as a result of the current legislation.

  • Voting Rights for Incarcerated People in CT

In the state of Connecticut, voting rights advocates have successfully expanded voting rights for formerly incarcerated people over the past two decades, but more work remains to be done. 

Prior to 2001, a person who had been convicted of a felony and committed to confinement in a federal or other state correctional institution or facility could only have their voting rights restored upon the payment of all fines in conjunction with the conviction, and once they had been discharged from confinement, probation (handed down by the judge at trial — a community supervision option that may be in lieu of jail time or in combination with some jail time) and parole (for people who have been convicted of a crime and have already served a portion of their prison sentence; can allow early release from a prison sentence).3

In 2001, Connecticut lawmakers restored voting rights for people on probation, but reform efforts stalled before the right to vote was restored for those on parole. As a result, CT was the only state in the nation that allowed people on probation to vote, but not people on parole, the Brennan Center reports (the only voting-eligibility law in the country that treated people on probation and parole differently).4 

Twenty years later, Governor Ned Lamont signed SB 1201 in June of 2021, which finally restored voting rights for people on parole. Roughly 4,000 people on parole in CT were prohibited from voting — with the signing of the bill, they are now able to participate in democratic processes.5 

While SB 1201 — the bill signed by Governor Lamont in 2021 that restored voting rights for people on parole — was an important step towards improving felon voting rights, much more needs to be done. The current barriers to voting behind bars continue to: 

  • Have a disproportionate impact on already marginalized citizens in our communities, particularly low-income people of color, which makes up 71% of the state’s prison population but only 29% of state residents”.6 
  • Are remnants of historical race based, intergenerational exclusion from the vote, and; 
  • Are contrary to efforts to facilitate reentry by allowing those who are incarcerated to maintain community ties and have a voice in the policy decisions impacting their families.

Currently, incarcerated people who are held pretrial (a person who is legally detained but has not received notification of conviction, including people awaiting trial, being tried, or awaiting a verdict) and have not been convicted or who are serving sentences only for misdemeanor offenses (a type of offense typically punishable by less than 12 months in jail) retain the right to vote in local, state, and federal elections, so long as they are otherwise eligible to vote under state law.7 This means that thousands of incarcerated Connecticut residents are eligible to vote: as a snapshot, on July 1st, 2019, there were 640 misdemeanor inmates and 3,677 unsentenced inmates under the custody of Connecticut’s Department of Correction (DOC).7 Together, these groups constitute roughly 30% of the state’s incarcerated population.7 However, many incarcerated people are likely unaware of their eligibility. For those who are aware, the requirements to register to vote in prison, the procedure of sending absentee ballots through the mail, and Department of Correction policies prohibiting possession of postage stamps, leaving incarcerated voters unable to easily mail their ballots if they succeed through the other complicated measures, makes it extremely difficult to actually vote.7

To attempt to address and eliminate some of these barriers, the Full Citizens Coalition, an advocacy group directed by James Jeter and Urania Petit, is currently calling on Connecticut state legislators to pass legislation that would increase ballot access for all incarcerated people in CT prisons and jails, including those with felony convictions who have a possibility of release in the 2022 legislative session. The proposed law would allow all incarcerated people to vote through a “presumptive absentee ballot status”, which is modeled after the existing “permanent absentee ballot status” law for those who are permanently disabled. 

Increasing ballot access for incarcerated people through this bill would:

  • Connect incarcerated individuals with absentee ballots in the towns where they reside
  • Allow incarcerated individuals to retain their full participation in democratic processes, and;
  • Work to lessen the racial inequality that exists as a result of mass incarceration, which disproportionately impacts low-income people of color.

  • Maine and Vermont’s Outlier Status

In Maine and Vermont, state Constitutions allow all incarcerated people to vote, which has been interpreted to include people who are both currently and formerly incarcerated from the earliest days of statehood. While it may be easy to attribute this to the progressive nature of the two states, they also share several characteristics that make voting by prisoners less controversial. 

  • Incarcerated people can only vote by absentee ballots in the place where they last lived, and they are not counted as residents of the town that houses a prison. This is significant because it means that their votes cannot sway local elections if they vote as a collective.
  • The majority of prisoners in Maine and Vermont are white, which defuses the racial dimensions of felony disenfranchisement laws.
White Imprisonment Rate (per 100,000) Black Imprisonment Rate (per 100,000) Total % White Population (in the state) Total % Black Population (in the state) Total % White Population Incarcerated (in the state) Total % Black Population Incarcerated (in the state) Black : White Ratio (Racial Disparity in Imprisonment)
CT 156 1,512 65.9% 12.2% ≈29.0% ≈42.0% 9.7
VT 239 1,737 92.6% 1.4% 85.6% 9.8% 7.3
ME 143 1,331 93.0% 1.7%  ≈85.0% ≈17.5% 9.3

Notes: To find the white and black imprisonment rate for each state (CT, VT, ME), as well as the black : white racial disparity in imprisonment, I used the Sentencing Project’s state database.8 To find the total percentage of black and white total populations in each state, I used the Census Bureau’s 2021 database.9 To find the percentage of the prison population for each racial demographic in each state, I used the Connecticut Department of Correction’s published monthly data (April 2022) for CT, Vermont Department of Correction’s published population report (March 2022) for VT, and Maine Department of Correction’s Adult Data Report (March 2022) for ME.10

  • Barriers to Voting in Maine and Vermont 

While Maine and Vermont’s voting rights for incarcerated people serve as an important model for CT and other states to follow, the external and internal barriers to voting even within these states remain high, as those who are incarcerated are not given internet access to stay up to date on current events and election information, and they are also discouraged from exploring and displaying their potential political partisanship. To further this issue, there is often a large gap between having a legal right to vote and knowing about that right, knowing how to exercise that right, and being convinced that it is worthwhile to actually use that right. 

An even bigger issue relating to voting barriers in Maine and Vermont for incarcerated people is the extremely high illiteracy rate among people in prison, especially in Vermont. The Literacy Project Foundation found that three out of five people in U.S. prisons can’t read and 85 percent of juvenile offenders have trouble reading.11 Even those in prison who can read struggle to write, which makes it nearly impossible to register to vote and fill out a ballot without help, which is inextricably linked to high recidivism rates.11 This issue emphasizes the importance of implementing policies that both grant incarcerated people the right and access/resources to vote.12

To sum it up: low literacy rates and little access to information means many incarcerated people don’t exercise their right to cast ballots, so there is no need to disenfranchise them if they aren’t going to exercise it in the first place. 

To put this into perspective, it is estimated that about only one-third of people currently imprisoned in Vermont are registered to vote, and that about 8% of incarcerated people voted in the 2018 general election. In Maine, these numbers are even lower.13

Key Findings: Research Question #2: How did selected European nation(s) and US models of penal codes and prison systems evolve during the late 1800s, and to what extent were they shaped by different experiences with slavery/reconstruction?

  • What does disenfranchisement look like in other progressive nations? 

Due to the view in each of the three countries that a person’s loss of liberty serves as the full punishment, people who are incarcerated in Norway, Finland, and Germany do not lose their right to vote while in prison, and generally have the same rights as an ordinary citizen.

  • Acknowledging Painful History 

While many perceive the prison systems in these countries as morally superior, more humane and equitable — and while that may be comparatively true when examining the systems in the US — they all have histories that demand to be reckoned with and acknowledged. The significance of examining these three countries in comparison to the United States is that all of them have historically participated in racial slavery and/or colonization and/or genocide. Where Norway, Finland, and Germany differ from the United States is that these three countries have not translated their horrific history into their prison systems to (re)create second-class citizenship at the same scale or in the same racialized manner as in the United States. 

Norway was a significant actor in the transatlantic slave trade, transporting more than 100,000 enslaved people to the Caribbean. Professor Olasee Davis at the University of the Virgin Islands on St. Croix in the U.S. Virgin Islands believes that “Denmark had the most vicious and barbaric laws in the entire Caribbean”, as Norwegians took part in the slave trade related to the Caribbean.14 Matters did not improve when missionaries came in to “lead the black slaves out of the darkness of the devil and into the light of Jesus.”14 

Finland has a history of extensive raiding by Novgorod, a thriving trading settlement along a major Varangian (the medieval term for Viking) trade route between Scandinavia and Greece, which was well connected to the Crimea and the Caspian Sea and the slave markets of Central Asia, into some of its regions during the late medieval and early modern periods, with thousands of people kidnapped in the north. Finns were especially valuable on the slave trade market because they were neither Christian or Muslim, and because of their light skin color.15 However, Sweden’s colonization and rule in Finland from the 13th century onwards until 1809 does suggest that there may have been slavery in Finland, as Sweden allowed slavery until 1847 and participated in the slave trade.16  

Germany’s massacre of more than 60,000 Herero people in German Southwest Africa in 1904, in today’s Namibia, was the first genocide of the 20th century.17 When the Herero people tried to defend themselves against German colonizers, Germany’s troops shot them, poisoned their wells, and drove them into the desert and left them to die. Germany did not issue an official apology or acknowledgment until 2004. The country also played their part in the transatlantic slave trade; German merchants were an intricate part of the slave trade, particularly in France. Additionally, the absolute horrors and atrocities of the Holocaust continue to scar and traumatize the international community at large, especially the Jewish community.

  • The Effectiveness of Prison Systems in Norway, Finland, and Germany 

Norway

In Norway, capital punishment was banned in 1902, and life sentences in 1981. But the system still saw high rates of reoffending — around 60%.18 Before a top-to-bottom set of prison reforms in the 1990s, Norway’s prison system had a focus on guarding and security, with much less focus on rehabilitation. After the 1990s changes, which included bringing in educational programs, workshops, new cell space designs, and a transformation of the role of prison guards into mentors and coaches as well, the recidivism rate dropped to 20% — one of the lowest in the world.18 

The average prison sentence in Norway is around 8 months, and over 60% of sentences last 3 months or less — almost 90% last less than a year.18 To put this statistic into perspective, 1.8% of those incarcerated are sentenced to 0 to 1 year in the United States; the highest percentage of incarcerated people are sentenced to 5 years or more, but less than 10 years (26.2%).19 15% of those incarcerated in the United States are sentenced to 20 years or more, but less than life.19 

Norway’s prison system is seen as particularly effective because the country relies on a concept called restorative justice: an approach to justice that focuses on the rehabilitation of offenders through reconciliation with victims, repairing the harm and rebuilding relationships in the community.20 Within the facilities, normalcy is maintained as much as possible. Prisons in Norway aim to offer a life that is as close to that on the outside as possible, in order to minimize any possibility that would make re-entering society more difficult. 

Finland

Similar to Norway’s prison systems, Finland’s model also focuses on rehabilitation. Finland has one of the lowest prison populations in the world — around 3,000 people out of a national population of 5,556,421 — and ⅓ of its prisons operate as “open prisons,” which allow incarcerated people to leave the prison for schooling or a job.21  

Germany 

Germany has taken its horrific history into account and built a modern criminal justice system in response. The German Constitution states that “human dignity shall be inviolable.”22 The German Prison Act reinforces this view by establishing that the sole objective of incarceration is rehabilitation, so that people will return to their communities and lead crime-free and productive lives.22 Because of this fundamental framing, prison is an option of last resort. Only 6 percent of people sentenced in German courts receive a prison sentence; everyone else receives community-based sanctions, such as day fines or community service.22 For those who do receive prison sentences, nine out of 10 will serve less than two years.22 

Conclusion – What Does This Research Remind Us Of? 

While this international comparative study between selected European nations and the United States illuminates the complicated realities of incarceration and the right to vote, this research also reveals some concrete takeaways. The first being that the US can punish less, specifically in a way that does not link incarceration to citizenship through disenfranchisement despite its horrific, rather unique history of chattel slavery on its own soil. If we are seeing that the US is still producing second class citizenship through disenfranchisement, which in many cases affects people whose ancestors were formerly enslaved, the first step towards a solution to this would require overcoming a racialized and exclusionary conception of citizenship. Having the right to vote is not just about who gets to elect the next Connecticut governor, nor participatory democracy in the state, but ultimately what citizenship means in the United States, and the path the nation continues to take in excluding people from full citizenship.

Acknowledgements 

I would like to express my deep gratitude to Jack Dougherty and Erica Crowley, for their unwavering support and guidance throughout the entire research process, my faculty sponsor Professor Anna Terwiel, for her expertise and continual support in attempting to grapple with the complicated realities of mass incarceration and disenfranchisement, and my community partner James Jeter, for his inspiring passion, willingness to collaborate, and constant confidence in me throughout this semester. I would also like to thank the other Spring 2022 Community Learning Research Fellows for their continued support. 

Additional Resources / Ways to Learn More 

  • Book: Colin Dayan, The Law Is a White Dog: How Legal Rituals Make and Unmake Persons
    • Engages with the question of how personhood is defined and materially shaped via the practice of law. 
    • Disclaimer: a challenging read; would recommend for those interested in Angela Davis’ work, those interested in philosophy, law, history, and human rights 
  • Book: Bryan Stevenson, Just Mercy 
  • Netflix Documentary: 13th 
    • Explores the history of racial inequality of the United States, and the legal loophole that the Thirteenth Amendment has created: the continuation of slavery as punishment 
  • Podcast: “Why Life After Incarceration Is Just Another Prison”, with Reuben Jonathan Miller (Ep. 65)
    • Sociologist examines how the system prevents many from regaining citizenship in a society 
  • Podcast: “Beyond Prisons”, with Kim Wilson and Brian Sonenstein 
    • A podcast on incarceration and prison abolition that elevates people directly impacted by the system 
  • Article: “Words Matter: Don’t Call People Felons, Convicts, or Inmates” by Erica Bryant
    • The importance of being mindful of the language we use when talking about or referring to the incarcerated or justice-impacted people 
  • Book: Alan S. Gerber, Gregory A. Huber, Marc Meredith, et. al, Can Incarcerated Felons Be (Re)integrated into the Political System? Results from a Field Experiment 
    • Examines the direct effects of incarceration on patterns of political engagement drawing on new administrative data from CT. Presents findings from a field experiment showing that a simple informational outreach campaign to released felons can recover a large proportion of the reduction in participation observed following incarceration
  • Book: Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy 
    • Reveals the centrality of racial factors in the origins of these laws and their impact on politics today

Notes:

1 https://www.sentencingproject.org/wp-content/uploads/2020/10/Locked-Out-2020.pdf

2 https://news.uchicago.edu/big-brains-podcast-why-life-after-incarceration-just-another-prison 

3 Democracy Docket. “Felony Disenfranchisement Explained.” Accessed April 8, 2022. https://www.democracydocket.com/explainers/felony-disenfranchisement-explained/.

4 https://www.napolilaw.com/article/what-is-the-difference-between-probation-and-parole/

5 https://eji.org/news/new-law-marks-national-progress-in-effort-to-end-felony-disenfranchisement/ 

6  Backus, Lisa. “Coalition Seeks Restoration Of Voting Rights.” CT News Junkie, February 28, 2022. http://ctnewsjunkie.com/2022/02/28/coalition-seeks-restoration-of-voting-rights/.

7 http://ctsentencingcommission.org/wp-content/uploads/2020/06/Improving-Access-to-Voting-in-CT-Jails-Prisons.pdf 

8 https://www.sentencingproject.org/the-facts/#detail?state1Option=Connecticut&state2Option=0

9 https://www.census.gov/quickfacts/fact/table/CT/RHI125220#RHI125220 

10 https://portal.ct.gov/-/media/DOC/Pdf/MonthlyStat/Stat04012022.pdf 

https://doc.vermont.gov/sites/correct/files/documents/PopulationReport_3-31-22.pdf

https://www.maine.gov/corrections/sites/maine.gov.corrections/files/inline-files/March%202022%20Monthly%20Adult%20Data%20Report_1.pdf

11 https://observer.com/2017/07/prison-illiteracy-criminal-justice-reform/ 

12  Press, Toby Talbot/Associated. “In Just Two States, All Prisoners Can Vote. Here’s Why Few Do.” The Marshall Project, June 11, 2019. https://www.themarshallproject.org/2019/06/11/in-just-two-states-all-prisoners-can-vote-here-s-why-few-do.

13 https://arwhite.mit.edu/sites/default/files/images/VTprison_researchnote_RR_forwebmarch2020.pdf 

14 https://www.norwegianamerican.com/new-book-on-danish-norwegian-18th-19th-centuryslave-trade-sheds-light-on-a-dark-chapter-in-history/ 

15 https://www.medievalists.net/2014/04/medieval-slave-traders-go-finland/ 

16 https://www.thelocal.se/20200615/how-can-sweden-better-face-up-to-its-colonial-past/ 

17 https://www.fairobserver.com/region/europe/hans-georg-betz-germany-colonial-history-slave-trade-namibia-genocide-racism-news-15511/ 

18 https://www.businessinsider.com/why-norways-prison-system-is-so-successful-2014-12 

19 https://www.bop.gov/about/statistics/statistics_inmate_sentences.jsp 

20 https://ojjdp.ojp.gov/sites/g/files/xyckuh176/files/pubs/implementing/balanced.html 

21 https://www.wbez.org/stories/how-finlands-criminal-justice-system-compares-to-the-us/288505cf-365b-4508-a850-5106f551ce3e 

22 https://www.themarshallproject.org/2018/12/20/out-from-the-holocaust