Preserving dignity: rethinking voting rights for U.S. prisoners, lessons from South Africa.

Author:Spates, Kamesha


The purpose of this article is to demonstrate how voting restrictions have impacted people of African descent in the United States and throughout the Diaspora. We begin with a discussion of Critical Race Theory (CRT). Taking a critical perspective, we illustrate how through the guise of legal neutrality, mass incarceration has largely resulted in the silencing of entire segments of the population. This in-depth analysis describes the laws and policies that have created structural barriers for an ever-increasing population of individuals with a history of incarceration.

We then proceed to review felon disenfranchisement laws in South Africa. Although there are similarities between some of the structural barriers encountered by individuals in both countries, one drastic difference is the successful revision of policy that allows incarcerated South Africans to vote. In this article we draw on the discourse on dignity as it is applied in the constitution of South Africa. We seek to highlight how, in light of the history of apartheid, this spirit of dignity and the inclusiveness it implies helps maintain the value of the incarcerated population. Ultimately, it is time to apply these lessons learned from the South African context to reevaluate voting restrictions in the U.S.

Critical Race Theory

Critical Race Theory emerged in the mid-1980s in response to discontent of legal scholars of color with the neglect of Critical Legal Studies to bring about progressive racial reform. Fundamental principles of CRT stem from the legal scholarship of Derrick Bell. Bell's work, among others, argues that the "White experience," by way of the dominant narratives, gets circulated as truthfulness, which is not only erroneous but oppressive to non-Whites (Bell, 2000).

They lack people of color's voices and perspectives, causing scholars of color to question the intent and accuracy of the narrative. CRT scholars advocate for the importance of revealing multiple viewpoints, to emphasize the side of the story that rarely gets told. Although the narrative of minorities is and will be different from that of the dominant narrative, in order to ensure that the presentation is comprehensive people of color should be at the center of contemporary racial discourse (West, Crenshaw, Gotanda, Peller, & Thomas, 1995).

Central arguments of CRT posit that: intersecting notions of race, power, and law contribute to widespread marginalization of people of color; racism is a fundamental aspect of U.S. society that generates psychological and material privileges for Whites, and because racism benefits elite Whites materially and working class Whites psychologically, large segments of the White population have no desire to eradicate it; and notions of rationality, objective truth, and judicial neutrality serve as yet another medium for Whites to spread dominant narratives (Delgado & Stefancic, 2013; West et al., 1995).

Accordingly, CRT provides scholars with trans-disciplinary theoretical and methodological approaches to challenge notions of White privilege and racial hierarchies, while focusing particularly on the ways in which laws serve to maintain existing social order.

CRT contributes an additional take on the ways in which we define race. Theorists claim not only that race is socially constructed, by also legally constructed. Ian Haney Lopez, in White by Law, recounts the ways in which race and legality merged several centuries ago (Haney-Lopez, 1996). In Dred Scott v. Sandford, the United States Supreme Court (USSC) decided that African Americans, enslaved or free, could not be granted U.S. citizenship. It was not until the Naturalization Act of 1870 that African Americans were granted birthright citizenship ("Dred Scott v. Sandford," 1856).

Racial prerequisite cases (e.g., Dred Scott, Ozawa) set the stage for naturalization guidelines ("Dred Scott v. Sandford," 1856; "Ozawa v. United States," 1922). Prerequisite cases were cases whereby the judicial system determined citizenship eligibility. These decisions were primarily based on skin color (i.e., race) and cultural and intellectual fitness. Consequently, prerequisite cases set the stage for the legal construction of race. The courts relied on four different legal rationales to substantiate who was White or who was Black: common knowledge; scientific rationale; Congressional intent; and legal precedent (Haney-Lopez, 1994). Each of the aforementioned rationales was based exclusively on White men's opinion of non-Whites. They turned to scientific claims to validate their opinions and when science or previous legal decisions failed to protect the boundaries of Whiteness they would then rely on notions of "common knowledge" (i.e., whatever White men thought) (Haney-Lopez, 1996).

Naturalization rights for Hispanics, Asians, and other groups of color were not bestowed until much later. It was not until the Immigration and Nationality Act of 1952 (also known as the McCarran-Walter Act) that the U.S. rescinded racial restrictions on immigrant populations. Lopez's work brings attention to the role that legal actors played in the fabrication of the races. Additionally, prerequisite cases operationalized meanings of non-White, yet deliberately failed to establish meanings of Whiteness. On the whole, Lopez establishes that race, racism, and American law emerged concurrently (Haney-Lopez, 1994; 1996).

A Critique of "Justice"

For much of the twentieth century, equal protection under the law was nothing more than an ideal. For centuries, people of color faced a justice system that included harsher sentences for people of color, all-White juries, and excessive cruelty at the hands of law enforcement. And so, non-Whites faced a different reality within the legal system compared to Whites (Fukurai, Butler, & Krooth, 1993).

Gunnar Mydral's examination of the southern White court system revealed that African American offenders who victimized Whites received the strictest penalties (Mydral, 1944). This can particularly be seen in Pre-Civil War statutes on sexual assault. The courts employed race-specific doctrines for Black defendants accused of raping White women. For instance, the Virginia Code of 1819 instituted a penalty of death for the rape or attempted rape of a White woman by an enslaved person; whereas if the offender was White, he faced 10-21 year sentence. On the other hand, the penalty for the rape or attempted rape of a Black woman by a White man was 1-7 years in prison. Similarly, in accordance to with Kansas Compilation of 1855, a Black man convicted of raping a White woman was to be castrated, while a White man convicted of raping a White woman could receive a maximum penalty of 5 years in prison (Walker, Spohn, & Delone, 2012).

The legacy of disparate penalties for Blacks and Whites remains well intact. Scholars Gary LaFree and Anthony Walsh offer up evidence that suggests African American men convicted of sexually assaulting White women are more likely to serve prison time than any other offenders in Indianapolis and in a metropolitan Ohio county (Kansal, 2005; LaFree, 1989; Walsh, 1987). Research suggests that, even though African Americans make up about 13 percent of the general population, they have been sentenced to death and executed at disproportionately higher rates than other racial groups (Baldus, Pulaski, & Woodworth, 1983; Death Penalty Information Center, 2014; Ogletree Jr, 2002). A closer look at the 2014 racial composition of death row inmates shows that 1,284 (41.8 percent) were African American, 388 (12.6 percent) were Hispanic, and 1,323 (43.1 percent) were White. In all, 467 African Americans (34.4 percent) have been executed in the United States since 1976. There have been 290 persons executed in the United States for interracial murders since 1976; 270 of these cases consisted of a Black defendant and a White victim (NAACP Legal Defense Fund, Winter 2014).

Although overt discrimination in the U.S. legal system has declined, Blacks and Whites continue to hold vastly different viewpoints regarding the fairness of the U.S. justice system. In a 2013 Washington Post interview, authors' John Hurwitz and Mark Peffley discussed differences in how Blacks and Whites perceive the criminal justice system. They conclude because Blacks and Whites have had two vastly different sets of experiences with the criminal justice system, they interpret the legal system differently (Sides, 2013).

According to a 2013 Gallup poll, almost one in four Black men between the ages of 18 and 35 believe that they have been treated unfairly by the police within the last 30 days (Newport, 2013). Similarly, Chaney and Robertson (2013) examine public perception of police officers alongside the ways in which race and racism shape these conversations. They found that public perceptions of the police remain largely negative. Consequently, a large number of participants articulated notions of suspicion, mistrust, and concerns over police brutality as worthy of discussion (Chaney & Robertson, 2013).

Research continues to validate African Americans' perceptions of an unjust justice system. To this point, Ronald Weitzer finds that the two main issues troubling African Americans today are "under-policing and abusive policing" (Weitzer, 2005). Additionally, studies continue to show that African Americans, when compared to their White counterparts, are more likely to be stopped, arrested, and questioned, and they are also more likely to be searched and frisked. A large body of research assesses the effects of race at virtually every stage of the criminal justice system (Cole, 2000; Joseph, 2003; Rosich, 2007; Walker et al., 2012).

Contemporary discourse claims that the application of law is objective and race-neutral. While matters have improved, African Americans disproportionately continue to face contemporary challenges. CRT scholars argue that we must pay close attention to the multiple...

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