Note: If you haven’t already read Part 1 – Backyard Prisoners, you should start there.

One of the things the American Founding Fathers hated most about Great Britain was what they called rotten boroughs.  A rotten borough is a legislative district where the representatives represent fewer people than the representatives in other districts.  The framers of the Constitution did not want any rotten boroughs in the United States.

“The delegates were quite aware of what Madison called the ‘vicious representation’ in Great Britain whereby ‘rotten boroughs’ with few inhabitants were represented in Parliament on or almost on a par with cities of greater population.  The delegates referred to rotten borough apportionments in some of the state legislatures as the kind of objectionable governmental action that the Constitution should not tolerate in the election of congressional representatives”

Wesberry v. Sanders 376 U.S. 1 (1964) (emphasis added).

The framers of the Constitution thought it was wrong and stupid to give a small number of people the same number of representatives as much larger groups.

One principle was uppermost in the minds of many delegates: that, no matter where he lived, each voter should have a voice equal to that of every other in electing members of Congress. Repeatedly, delegates rose to make the same point: that it would be unfair, unjust, and contrary to common sense to give a small number of people as many Senators or Representatives as were allowed to much larger groups.”

Wesberry v. Sanders 376 U.S. 1 (1964).

They thought the worst treachery and corruption came from the legislators who represented rotten boroughs, because it’s easier to be corrupt when you are accountable to fewer people.

“‘The greatest degree of treachery in representatives is to be apprehended where they are chosen by the least number of electors; because there is a greater facility of using undue influence, and the electors must be less independent… Who are the most corrupt members of Parliament? Are they not the inhabitants of small towns and districts?  The supporters of liberty are from the great counties.'” 

James Madison, “Madison’s Theory of Representation in the Tenth Federalist” Robert J. Morgan. The Journal of Politics, Volume 36, Issue 4 Nov 1974,page 863-4

 “Bad elections proceed from the smallness of the districts which give an opportunity to bad men to intrigue themselves into office.”

James WilsonInventing the People: The Rise of Popular Sovereignty in England and America

They thought, in order to avoid this treachery and corruption, representation must be distributed equally, with every person getting the same amount of representation as every other person.

“That it may be the interest of this Assembly to do strict justice at all times, it should be an equal representation, or in other words equal interest among the people should have equal interest in it. Great care should be taken to effect this, and to prevent unfair, partial, and corrupt elections.” 

John AdamsThoughts on Government, ” (1776).   The Adams Papers Digital Edition. Massachusetts Historical Society. 

At the birth of our republic, I committed that opinion to the world, in the draught of a constitution annexed to the “Notes on Virginia,” in which a provision was inserted for a representation permanently equalExperience and reflection have but more and more confirmed me in the particular importance of equal representation.”

Thomas Jefferson, letter to Samuel Kercheval, 1816

[A]ll elections ought to be equal. Elections are equal when a given number of citizens in one part of the state choose as many representatives as are chosen by the same number of citizens in any other part of the state. In this manner, the proportion of the representatives and of the constituents will remain invariably the same”

James Wilson, The Federalist #51.

The rights of suffrage in the national legislature ought to be proportioned to the number of free inhabitants.”

Alexander Hamilton, Constitutional Convention of 1787

If the power is not immediately derived from the people in proportion to their numbers we may make a paper confederacy, but that will be all.” 

James Madison, Constitutional Convention of 1787, as quoted in Wesberry v. Sanders 376 U.S. 1 (1964).

This was a radical idea back then. Previously, you didn’t get power in government just because you were a person; it depended on things such as how much land you owned.  James Madison noted that lawmakers would take advantage of this by buying lots of land with borrowed money, getting themselves elected, and then promoting unjust lending policies designed to protect them against their creditors.

“Mr Madison moved to strike out the word landed, before the word “qualifications.” If the proposition Landed possessions were no certain evidence of real wealth. Many enjoyed them to a great extent who were more in debt than they were worth. The unjust Laws of the States had proceeded more from this class of men, than any others. It had often happened that men who had acquired landed property on credit, got into the Legislatures with a view of promoting an unjust protection against their Creditors.

The Journal of the Constitutional Convention of 1787,  July 19.

“It was instructive that the strongest proponents of the agrarian laws were men who possessed large holdings of land – more so than any other class.  They had acquired large amounts of land on credit and then secured their own election to the legislatures ‘with a view to promoting an unjust protection against their creditors.

Madison’s Theory of Representation, The Journal of Politics, Vol. 36, No. 4 (Nov., 1974) page 875

Of course, the Founding Fathers were right, and today, equal representation is practically the defining characteristic of a modern democracy.  But today we do have rotten boroughs in America.  Every district with a prison in it has fewer electors than those without. A small town with several prisons has significantly fewer electors than those without.  This wasn’t an issue when this country was first created, because the number of prisoners was very small.  But, as the prison population rose, the rotten boroughs grew in size and in number. 

And, as you know,  the lawmakers who represent the districts with the prisons in them don’t use land to secure their own elections, or re-elections, they use prisoners.  (If you didn’t know that, please read or re-read part 1 of this series, Backyard Prisoners).  And they don’t promote unjust lending policies designed to protect them against creditors, they promote unjust criminal justice policies designed to bring them more prisoners.

“‘The people elected in those districts with high prison populations are more conservative and support more mass incarcerations and the existence of prisons,’ Green said. ‘They use the numbers to get elected, but they don’t represent [the prisoners’] interests.’ “

Alice Green, founder and executive director of the Center for Law and Justice, quoted in As Census Nears, How to Count Inmates Is Debated – washingtonpost.com,  April 26, 2009 (last visited Jan. 5, 2011).

“The representatives of these districts literally have imported their constituents by advocating construction of prisons in upstate areas and maintenance of harsh sentencing laws.”

National Voting Rights Institute and Prison Policy Initiative

iwantyou2

It’s not just a matter of maintaining harsh sentencing laws.  There are countless issues likely to affect the number of people who go to prison, and the length of time they stay there: statutes of limitations, rights to appeal, evidentiary burdens, restrictions on plea bargaining, the use of parole and probation, pre-release conditions, post-release conditions, access to legal aid, and more, and there are countless ways for a creative lawmaker to help maintain a sufficient supply of prisoners.

Let’s take a look at a few examples.

Dale Volker was New York State Senator from 1975 to 2010. He had six prisons in his district.  He called himself “the keeper of the keys.”   

State Senator Dale Volker, who calls himself ”the keeper of the keys” for his control of the process that allocates new prisons, said in an interview that legislators competed to get prisons. 

Full-Employment Prisons, New York Times, August 23, 2001 

Michael Nozzolio was a New York State Senator from 1992 to 2016. He also had six prisons in his district.  They called him their “rainmaker.” 

Prisons are bonanzas in depressed areas, and Glenn R. Cooke, Seneca County’s development director, calls Senator Nozzolio ”our rainmaker.” The senator has six prisons in his district, and the public policy group City Project says more than a third of the state’s prisons are in the districts of three senators, Mr. Nozzolio included.

Our Towns; One Community’s Lawbreakers Are Another’s Growth Industry – New York Times,  June 25, 2000

They were both known for advocating policies that lead to high incarceration rates,

Prisoner advocates have pointed to Republican State Sens. Michael Nozzolio and Dale Volker in particular as advocates of tough-on-crime stances that lead to high rates of incarceration. Advocates say that stance is politically convenient.

Who should count Auburn’s prisoners? The Citizen, 

such as New York’s draconian drug laws.

In other words, it is not just that these artificial voting districts are undemocratic in principal by counting people who cannot vote, it is that their senators—like Volker and Nozzolio—consistently legislate against the urban minority communities that account for the very inmates whose incarceration allowed these senators’ positions of power in the first place.  For instance, both Senators Volker and Nozzolio are zealous proponents of the lengthy prison sentences prescribed by the draconian Rockefeller drug laws. Regardless of how ineffective and out of date the drug laws, and notwithstanding how destructive they have proven to countless poor urban communities, Volker and Nozzolio’s records still show overwhelming support for the laws with the exception of two votes for very modest reform.

Counting Off Upstate, The Brooklyn Rail, September 2, 2006 

Mr. Volker heads the Senate’s Codes Committee, and Michael Nozzolio, another senator with a prison-heavy upstate district, leads the Crime Committee. Both men have been influential in quashing challenges to the Rockefeller drug laws

Full-Employment Prisons, New York Times, August 23, 2001

Volker and Nozzolio sponsored a lot of bills likely to increase the prison population in various ways – for instance, by removing minimum value thresholds, so that more people are likely to be convicted of a crime,

Removes the $250 amount of damage from cemetery desecration in the first degree; makes cemetery desecration in the first degree a Class E felony to apply to any damage or theft regardless of value.

NY State Senate Bill S2686-2009, sponsored by Michael Nozzolio. 

or by allowing prosecutors to use evidence found in violation of a defendant’s constitutional rights,

Section 710.70 of the criminal procedure law is amended by adding a new subdivision 4 to read as follows: 4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, IN A CRIMINAL ACTION IN WHICH THE DEFENDANT IS ACCUSED OF AN OFFENSE DEFINED IN ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, THE COURT MAY NOT SUPPRESS EVIDENCE OR ORDER THAT EVIDENCE BE EXCLUDED ON ACCOUNT OF A VIOLATION OF ANY RIGHT ACCORDED BY THE FOURTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OR SECTION TWELVE OF ARTICLE ONE OF THE CONSTITUTION OF THIS STATE, IF THE COURT FINDS AFTER A HEARING THAT THE LAW ENFORCEMENT OFFICER OR OFFICERS ACTED IN GOOD FAITH.

NY Senate Bill S5361-2009, sponsored by Dale Volker

or by shifting evidentiary burdens to defendants.

Section 5 of the bill would shift the burden to the defendant who engaged in the sexual conduct with the under aged person to show, by a preponderance of the evidence, that the defendant did not have reasonable grounds to believe that the person was less than the age specified.” 

NY Senate Bill S2774-2009  sponsored by Dale Volker

They sponsored bills that would keep people in prison longer, for instance, by increasing penalties,

Section 8 of this bill would increase the penalty for a person who advances or profits from prostitution of a sixteen year old minor. Section 9 of this bill would increase the penalty for a person who by force or intimidation compels a sixteen year old minor to engage in prostitution.” 

NY Senate Bill S2774-2009  sponsored by Dale Volker

or by requiring consecutive sentences,

Provides for the imposition of consecutive sentences for persons convicted of promoting (dangerous) prison contraband in the first degree

NY Senate Bill S3387-2009, sponsored by Michael Nozzolio

or reducing the right to bail.

“Relates to the power of courts to deny orders of recognizance or bail where the defendant poses a risk of danger to the community” 

NY Senate Bill S3480-2009 – sponsored by Dale Volker

And they also sponsored bills that create new crimes.  In one three month period in 2009, they sponsored bills to create the following crimes: 

unlawful purchase of a social security number,

Establishes the crimes of unlawful purchase or sale of a social security number in the first and second degrees; prohibits the sale of a person’s social security account number; establishes unlawful sale of a social security number in the first degree as a class D felony and unlawful sale of a social security number in the second degree as a class E felony.” 

NY Senate Bill S3391-2009 – sponsored by Michael Nozzolio

electronic stalking,

Creates the new crime of electronic stalking; establishes electronic stalking in the first and second degree as violent felonies; and provides that a conviction for electronic stalking triggers submission to the DNA databank and the sexual offender registration act.” 

NY Senate Bill S5364-2009 -sponsored by Dale Volker

stalking by the use of technological devices,

Prohibits stalking by the use of technological devices and provides criminal penalties therefor”  S3393-2009 – NY Senate Open Legislation – Prohibits stalking by the use of technological devices and provides criminal penalties therefor

NY Senate Bill S3393-2009  – sponsored by Michael Nozzolio

theft of rental property,

“Creates the crime of theft of rental property or equipment” 

NY Senate Bill S2798-2009 – sponsored by Michael Nozzolio

agricultural adulteration, cyber-terrorism, hazardous use of a laser pointer, 

“Creates the state emergency health powers act; establishes measures to detect and track potential and existing public health emergencies and measures to declare a state of public emergency; authorizes special powers during a state of public emergency for the control of property and the control of persons; and further establishes procedures for dissemination of information to the public; enacts legislation relating to terrorism; including the crimes of agricultural adulteration in the first and second degrees, cyber-terrorism, hazardous use of a laser pointer, structuring in the first and second degrees, criminal facilitation of terrorism and conspiracy to commit terrorism; geographical jurisdiction of offenses, special aircraft jurisdiction of the state; search warrant of a foreign electronic communications service or a foreign remote computing service; liability of providers; roving interceptions.” 

NY Senate Bill S5361-2009  – sponsored by Dale Volker

illegally impersonating a pilot,

“Amends the existing crime of Criminal Impersonation in section 190.26 of the Penal Law to add impersonating a pilot, or other member of an aviation flight or ground crew.”  S5361-2009 – NY Senate Open Legislation – Creates the state emergency health powers act and enacts legislation relating to terrorism

NY Senate Bill S5361-2009  – sponsored by Dale Volker

and spitting on a paramedic with intent to annoy.  

Of course, it wasn’t literally called “spitting on a paramedic with intent to annoy.” It was called “aggravated harassment,” which sounds more reasonable.  Annoyingly spitting on a paramedic is one of the things the bill prohibits.  You’re also not allowed to alarm an emergency medical technician by throwing seminal fluid at him, and no defecating on court officers in a threatening manner.

“A new section 240.33 is added to the penal law creating the class E felony of aggravated harassment. A person is guilty of aggravated harassment of a police officer, peace officer, court officer, emergency medical technician or paramedic when, with intent to harass, annoy, threaten, harm or alarm a person whom he/she knows or reasonably should know to be a police officer, peace officer, court officer, emergency medical technician or paramedic engaged in the course of performing their official duties, he/she causes the police officer, peace officer, court officer, emergency medical technician or paramedic to come into contact with blood, seminal fluid, saliva, urine or feces, by throwing, tossing or expelling such fluid or material.” 

NY Senate Bill S4629-2009  – sponsored by Michael Nozzolio

New York State Senator Elizabeth Little was first elected in 2002 and is still in office.  There are so many prisons in her district, they call it “Little Syberia.” Without those prisoners, her job might not exist.

Elizabeth O’C. Little, a Republican state senator, represents a rural Upstate district larger in square miles than Rhode Island and Connecticut combined. But more than 13,500 of her constituents are not living there by choice, they could not vote for her if they wanted to, and most will leave the first chance they get.  Those unwilling constituents are incarcerated in one of 13 prisons — 12 state and one federal — that have given her district the nickname “Little Siberia.” Without the prisoners, the district, which stretches to the Canadian border, may not have the minimum population required to earn a seat in the state Senate.

As Census Nears, How to Count Inmates Is Debated, Washington Post, April 26, 2009

She fights to keep unnecessary prisons open.

Gabriels is a minimum-security prison camp, one of four state facilities slated for closure.  Republican State Sen. Betty Little says this region still provides a vital service.  “The fact that there are 12 facilities in my Senate district is because no one wanted them. And yes, we took them. And we developed an economy around them. But that’s not, you know, the fault of this area,” Little says. These days, Camp Gabriels operates at about half capacity, just under 190 inmates. But Little argues that too many inmates are being crowded into prisons downstate. “I will be the first to admit that if there are no inmates, you don’t have any prisons for them. But that’s not really the case of what’s happening here. They are double bunking still — and have over 6,000 double bunks right now,” she says.  State officials say housing two inmates in a single cell is a widely accepted practice.

Prison Closings Trouble Upstate New York, NPR, All Things Considered, March 4, 2008

She opposed drug law reform.

Little, a law-and-order Republican who voted against the recent overhaul of the state’s drug laws, thinks counting the prisoners as residents of her district makes sense. “Actually, it was the influences at home that got them into trouble in the first place, so maybe they’d be better off someplace else,” she said in a phone interview.

As Census Nears, How to Count Inmates Is Debated, Washington Post, April 26, 2009

She sponsors bills likely to increase number of people who go to prison, for instance, by creating new crimes, such as online shooting,

A Texas-based website called www.Live-Shot.com that allows users to hunt live animals from their home computers has prompted the State Senate to take action opposing the practice in New York. “This isn’t sport,” said Senator Betty Little. “This is the equivalent of an on-line video game and the animals don’t have a chance. Using a computer mouse, users can ‘hunt, click and kill’ and I think it really insults legitimate sportsmen. We want to keep this out of New York.” The Senate today approved a bill, S2822a, that prohibits the creation or maintenance of a website or hunting gallery from any location within this state for purposes of the on-line shooting of targets or animals
Little, who serves as secretary of the New York Sportsmen Legislative Caucus which is a bipartisan and bicameral coalition of lawmakers supportive of sportsmen’s issues, has circulated a letter in the Legislature urging her colleagues to approve the proposed legislation.

SENATE VOTES TO PROHIBIT ONLINE SHOOTING 

or by expanding crimes, so they apply to more people,

An act to amend the penal law, in relation to expanding the offense of assault in the second degree to include the infliction of serious physical injury in the course of committing hazing in the first degree 

NY Senate Bill S6084-2015 

or by redefining legal consent, in order to criminalize sexual conduct between consenting adults,

The Senate today approved legislation sponsored by Sen. Betty Little (R,C,I-Queensbury) that would criminalize sexual conduct between a school employee and student. The legislation would create the legal presumption that a student, regardless of age, is incapable of consenting to sexual conduct with a school employee.”

March 19, 2007, SENATE APPROVES BILL TO CRIMINALIZE SEXUAL CONDUCT BETWEEN SCHOOL EMPLOYEES, STUDENTS – US Fed News Service, Including US State News | HighBeam Research

She sponsors bills that increase the length of time people spend in prison, for instance, by increasing penalties, 

Increases severity of hazing in the second degree from a violation to an E felony where injury or death occurs, and of hazing in the first degree from a class A misdemeanor to a D felony where injury or death is caused by deadly weapon or dangerous instrument; creates new class A misdemeanor of hazing in the third degree which mirrors former hazing in the second degree.

NY Senate Bill S298-2009 

Legislation cosponsored by Senator Betty Little that would increase penalties for endangering the welfare of an incompetent of physically disabled person passed the Senate today.

LITTLE PUSHES BILL TO PROTECT DISABLED

Increases civil and criminal penalties for failure to pay wages or to differentiate the rate of pay based on sex

NY Senate Bill S1675-2017 

or by use of civil commitment – that’s when the government decides a prisoner is too dangerous to release after his prison sentence is over so they keep him in custody.

Authorizes the civil commitment of detained persons convicted of a misdemeanor sex offense or with a prior conviction in another state of an offense that would be a designated felony

NY Senate Bill S2646-2017 

And she sponsors bills that make it more likely a prisoner will be be sent back to prison after they get out, for instance, by requiring lifetime probation, with burdensome requirements such as yearly polygraphic examinations, and 24 hour GPS monitoring.

Requires level 3 sex offenders be subject to lifetime probation and to submit to yearly polygraphic examinations while on parole or probation….Section 7 – adds a new section 257-b of the executive law in regard to level three sex offenders. It directs probation officers to provide level three sex offenders under their supervision a statement of the conditions of parole or probation. Including the conditions would be the submission of a polygraph examination and wearing a global positioning device.

NY Senate BIll S297-2009 

Some of these laws seem pretty reasonable – until you read them.  

When Senator Little sponsored legislation criminalizing sexual conduct between school employees and adult students, she justified it as necessary to protect students of all ages from “those in positions of trust and power who may try to manipulate them into engaging in sexual activities.” Her press releases gave the example of a teacher offering a college recommendation in exchange for sex.

“‘Students need to be protected from those in positions of trust and power who may try to manipulate them into engaging in sexual activities,’ said Little. ‘For example, a student looking for a recommendation for college might find if difficult to say no to a sexual advance.” 

SENATE APPROVES BILL TO CRIMINALIZE SEXUAL CONDUCT BETWEEN SCHOOL EMPLOYEES, STUDENTS – US Fed News Service, Including US State News | HighBeam Research, March 19, 2007

That justification was literally written into the bill.

Children need to be protected from those in positions of power who may try and manipulate them into engaging in sexual activities, even if they are at the age of consent. There have been far too many instances of inappropriate sexual conduct between teachers and their students.” 

NY Senate Bill S299-2009  

These are reasonable goals, but the ban was not limited to teachers, or other people in positions of power.  It expressly included all school employees and even volunteers in the prohibition.

This legislation also defines the term school employee to mean any person defined as an employee or volunteer pursuant to section 1125 of the education law”

NY Senate Bill S299-2009  

That would include receptionists, cafeteria workers, janitors and everybody else working or volunteering at the school.  These people are not in positions of power.  They don’t have grades or college recommendations to withhold in exchange for sex.  Their explicit inclusion in the ban must have been motivated by something else.

Another example is New York’s “civil confinement” law, sponsored by Senator Volker. This law allows the government to keep people in prison after their sentences have ended, if they have been deemed unfit to return to society.

Senator Dale M. Volker (R-I-C, Depew) today announced that The New York State Senate, in collaboration with Governor Spitzer and the New York State Assembly, that would provide for the civil commitment of sexually violent predators at a secure treatment facility after they’ve completed their prison sentence in order to protect the public from criminals likely to commit repeated acts of sexual violence.

Senator Volker Announces Historic Agreement On Civil Confinement Of Sex Predators 

According to the terms of the law itself, confinement is necessary to protect people from “the most dangerous” “recidivistic sex offenders,” who, because of amental abnormality,” cannot stop themselves from committing further sex offenses.

10.01 Legislative findings. The legislature finds as follows: (a) That recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management. Civil and criminal processes have distinct but overlapping goals, and both should be part of an integrated approach that is based on evolving scientific understanding, flexible enough to respond to current needs of individual offenders, and sufficient to provide meaningful treatment and to protect the public.

(b) That some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses. These offenders may require long-term specialized treatment modalities to address their risk to reoffend. They should receive such treatment while they are incarcerated as a result of the criminal process, and should continue to receive treatment when that incarceration comes to an end. In extreme cases, confinement of the most dangerous offenders will need to be extended by civil process in order to provide them such treatment and to protect the public from their recidivistic conduct.

Civil Confinement law: Mental Hygiene law, Article 10 “Sex offenders requiring civil commitment or supervision” Section 10.01

According to Volker, the law had to be passed without delay, to “save lives…and protect children from violent sexual predators roaming the streets in pursuit of their next victim.

“What is the State Assembly waiting for? Every day that lapses, is another day for a violent sexual predator to do harm against our children and loved ones,” said Senator Dale M. Volker. “The time is now to address this scourge and make people accountable for their actions. There is absolutely no reason whatsoever, to drag our feet in dealing with violent sexual predators who are being let out of our corrections system with a $50 ticket to anywhere they would like to end up in New York State. We have the opportunity to save lives, protect our children, and ensure that our communities are safe from sexual predators who roam our streets in pursuit of their next victim.”

Senator Volker Urges State Assembly To Announce Their Conference Committee Members | New York State Senate, January 30, 2006

However, the law applies to crimes having nothing to do with sex, such as arson, robbery, and minor assault or burglary.

“Designated felony” means any felony offense defined by any of the following provisions of the penal law: assault in the second degree as defined in section 120.05, assault in the first degree as defined in section 120.10, gang assault in the second degree as defined in section 120.06, gang assault in the first degree as defined in section 120.07, stalking in the first degree as defined in section 120.60, strangulation in the second degree as defined in section 121.12, strangulation in the first degree as defined in section 121.13, manslaughter in the second degree as defined in subdivision one of section 125.15, manslaughter in the first degree as defined in section 125.20, murder in the second degree as defined in section 125.25, aggravated murder as defined in section 125.26, murder in the first degree as defined in section 125.27, kidnapping in the second degree as defined in section 135.20, kidnapping in the first degree as defined in section 135.25, burglary in the third degree as defined in section 140.20, burglary in the second degree as defined in section 140.25, burglary in the first degree as defined in section 140.30, arson in the second degree as defined in section 150.15, arson in the first degree as defined in section 150.20, robbery in the third degree as defined in section 160.05, robbery in the second degree as defined in section 160.10, robbery in the first degree as defined in section 160.15, promoting prostitution in the second degree as defined in section 230.30, promoting prostitution in the first degree as defined in section 230.32, compelling prostitution as defined in section 230.33, disseminating indecent material to minors in the first degree as defined in section 235.22, use of a child in a sexual performance as defined in section 263.05, promoting an obscene sexual performance by a child as defined in section 263.10, promoting a sexual performance by a child as defined in section 263.15, or any felony attempt or conspiracy to commit any of the foregoing offenses.

 NY Ment Hygiene L § 10.03  

The law was opposed because it appeared not to be a genuine response to the problem it was supposed to address.

“’Sex offenses are a serious public safety issue, but the political compromise that led to this legislation is not a serious response to the problem,’ Lieberman said right after the legislation was approved in Albany. ‘Its sponsors assert that the bill will confine “the most dangerous” offenders, but in fact it could subject to a civil commitment proceeding a person whose offenses include crimes not generally understood to be sex offenses, such as arson, robbery and minor assault.’”

Civil confinement law being tested, The Daily Gazette, April 6, 2008 

It’s not just New York. All over the country there are crazy sex laws that are supposed to protect us from some horrible fate, but really just punish people indiscriminately.   Consider the sex registries. The sex registries are supposed to protect us from sexual predators like rapists or child molesters by letting us know when one moves into town.  But there are laws all over the country requiring registration for minor, nonviolent crimes.

“Every American state keeps a register of sex offenders. California has had one since 1947, but most states started theirs in the 1990s. Many people assume that anyone listed on a sex-offender registry must be a rapist or a child molester. But most states spread the net much more widely. A report by Sarah Tofte of Human Rights Watch, a pressure group, found that at least five states required men to register if they were caught visiting prostitutes. At least 13 required it for urinating in public (in two of which, only if a child was present). No fewer than 29 states required registration for teenagers who had consensual sex with another teenager. And 32 states registered flashers and streakers.” 

Sex laws: Unjust and ineffective, The Economist, August 6, 2009

One state review found that two-thirds of the people on the sex registry posed little risk.

“How dangerous are the people on the registries? A state review of one sample in Georgia found that two-thirds of them posed little risk. For example, Janet Allison was found guilty of being “party to the crime of child molestation” because she let her 15-year-old daughter have sex with a boyfriend. The young couple later married. But Ms Allison will spend the rest of her life publicly branded as a sex offender. ” 

America’s Unjust Sex Laws, The Economist, August 6, 2009

As you can imagine, having so many petty offenders on sex registries makes it hard to keep track of the truly dangerous ones.

The police complain that having so many petty sex offenders on registries makes it hard to keep track of the truly dangerous ones. Cash that might be spent on treating sex offenders—which sometimes works—is spent on huge indiscriminate registries.” 

America’s Unjust Sex Laws, The Economist, August 6, 2009

You have to wonder what the real motivation is for these laws, when they are written in such a way that contradicts their stated purpose.

I’m not saying the sex registry laws, or the other unnecessarily tough criminal laws in America, were all written by lawmakers who represent towns with prisons.  And I’m also not saying anybody is consciously putting people in prison just to help themselves stay in office. I’m saying the benefits of prisoner-disenfranchisement bias lawmakers in favor of policies likely to increase incarceration. 

The lawmakers with an incentive to increase incarceration do what we all do when we want to believe something.  They deceive themselves.  They evaluate evidence selectively, focusing on supporting evidence in an uncritical fashion, while holding conflicting evidence to particularly critical scrutiny, or ignoring it completely.  

“Research shows that people evaluate evidence in a selective fashion when they have a stake in reaching a particular conclusion.  They tend to focus on evidence that supports the conclusion they would like to reach and evaluate that evidence in an uncritical fashion.  When evidence conflicts with their desired conclusions, people tend to either ignore it or subject it to particularly critical scrutiny.”

Moore, D. A., Tetlock, P. E., Tanlu, L., & Bazerman, M. H. (2006). Conflict of interest and the case of auditor independence: Moral seduction and strategic issue cycling. Academy of Management Review, 31(1), 10-29

If ethical considerations get in the way, then they ignore the ethical considerations. They don’t think about it.

People routinely do things that dispassionate observers would regard as unethical, without intending to behave unethically or even considering the possibility that their behavior has ethical implications.

Conflict of Interest and the Intrusion of Bias, Judgment and Decision Making, Vol. 5, No. 1, February 2010

“’I know we don’t like to think about the idea of incarceration,’ Hoopeston Mayor Bob Ault said, ‘but this is an opportunity for Hoopeston. We’ve been plagued with plant closings.’” 

Towns Put Dreams In Prisons – Page 2 – Chicago Tribune, March 20, 2001

This behavior is the rule, not the exception.  It would be a shock if it didn’t happen to politicians when political power is at stake. 

This practice is common, normal, and accepted as constant and pervasive in individuals’ lives.” 

Ethical Fading: The Role of Self-Deception in Unethical Behavior, Social Justice Research, Vol. 17, No. 2, June 2004, page 225

People make themselves believe some surprisingly stupid things when they want to do something they know is wrong – like the city administrator who thinks prison laborers work hard for no money because they have a good work ethic.

“An incarcerated resident is a non-demanding resident, points out Alan Bengyel, Ione city administrator. ‘There’s a tendency to think it’s a negative to have a prison in town,’ Bengyel said. ‘But it’s all how you look at it. Our city has learned to live in harmony with the prisons. There really is no negative for us.’   The prisoners are more than a passive source of tax revenue. They also pull weeds, build trails and manicure parks. When Ione flooded in 1997, inmates worked shoulder-to-shoulder with ‘free’ residents, lugging sandbags and building dikes.  ‘There’s no cost to us for their labor,’ said Bengyel, ‘and they have a very good work ethic.'”

The Sacramento Bee, April 30, 2000, CITIES COUNTING ON INMATE CENSUS INMATE CENSUS COUNTS BIG FOR CITIES, Author: Dorothy Korber, Bee Staff Writer, Edition: METRO FINAL, Section: MAIN NEWS Page: A1

or the state senator who thinks prisoners don’t need lawyers because the prison law library is so good.

State Senator Michael F. Nozzolio, a Republican from Seneca Falls who heads the Senate Crime and Corrections Committee, said taxpayers should not be paying prisoners’ legal fees. Inmates should depend on the law libraries in prisons, or on law students who volunteer to help them, Mr. Nozzolio said.  ”Prisoners’ Legal Services is a law firm funded by the taxpayers, designed to sue the taxpayers,” he said. ‘‘I went to law school and frankly, the law library at Auburn Correctional Facility is just as good as the one I had at my law school. Let the prisoners use that.””

Governor’s Budget Vetoes Imperil Legal Aid Programs – NYTimes.com, May 11, 1998

Any time a lawmaker who benefits from prison-based gerrymandering considers a policy that might affect the prison population, they engage in selective reasoning, and convince themselves, if at all possible, that the harsher policies are the better ones.  Chances are they don’t even know they’re doing it. 

When a particular interpretation of the evidence will benefit them materially, people  gravitate toward that interpretation, even when they hold an explicit goal of being impartial…they are typically unaware that they are processing information in a self-serving fashion and, thus, are unaware that they are biased…this bias is strong, automatic, and unconscious.”

 Moore, D. A., Tetlock, P. E., Tanlu, L., & Bazerman, M. H. (2006). Conflict of interest and the case of auditor independence: Moral seduction and strategic issue cycling. Academy of Management Review, 31(1), 10-29. 

Once they’ve convinced themselves, they go about trying to convince everyone else.  And since there is no opposing bias – nobody receives any gerrymandering-like effect by letting people out of prison – the result is an overall bias, a tendency throughout the United States, to choose policies that increase incarceration, no matter what reality actually requires. Consequently, laws likely to increase incarceration tend to pass no matter who originally sponsored them or what their motivation was.  

So, the reason American lawmakers continually pursued increasingly harsh criminal policies is because of the subjective bias created by prisoner disenfranchisement.  That’s the answer to mystery number 1.

Why did the American prison population grow exponentially?

The “get tougher on crime” laws pass, and eventually the prison population goes up.  The lawmakers who benefit from incarceration grow more powerful, and every time a new prison is built in a town that doesn’t have one yet, a whole new set of lawmakers who benefit from incarceration is born.  This is a positive feedback mechanism.  As the prison population grows, the politicians who benefit from incarceration gain power, making it easier for them to pass further laws that increase incarceration even more, resulting in a vicious cycle and exponential growth.  So that explains mystery number 2.  The prison population grew exponentially because of the positive feedback mechanism created by prisoner disenfranchisement.

Why did the American criminal justice system become increasingly targeted on African Americans?

It’s easy to see where the racism comes in when you realize this is all happening unconsciously. People who benefit from incarceration don’t want to put themselves there, or their children. Policies that focus their unjust punishment on minorities are preferable, because they pose less risk to the mostly white lawmakers and their families.  It’s other people who are likely to get hurt.  That’s a big advantage to the unconscious mind.  Also, lawmakers have to convince themselves that the people affected by the harsh laws deserve what they get.  That may be harder to do when they identify with the people in question.  Furthermore, laws that target minorities face less resistance in the legislatures, because there are fewer minorities in the legislatures.  As a result, laws and enforcement policies that target minorities have an easier time passing than those that harm everybody.  They can be harsher.    Like the “100 to 1” rule,

“Congress did a serious injustice when it imposed much tougher penalties on defendants convicted of selling the crack form of cocaine — the kind most often used in impoverished, minority communities — than on those caught selling the powdered form of the drug that is popular with more upscale users.  In what’s known as the 100-to-1 rule, federal law mandates a 10-year sentence for anyone caught with 50 grams of crack, about the weight of a candy bar. To get a comparable sentence, a dealer selling powdered cocaine would have to be caught with 5,000 grams, enough to fill a briefcase. The federal crack statute was passed during the height of the so-called crack epidemic of the 1980s, when it was widely, but mistakenly, believed that the crack form of the drug was more dangerous than the chemically identical powdered form. Congress compounded the inequity by making crack cocaine the only drug that carries a mandatory minimum sentence for possession, even for first-time offenders.”

100-to-1 Rule, New York Times Editorial, November 15, 2007

and “stop and frisk.”

“Eighty-five percent of those stopped are black and Latino, and are overwhelmingly male. While the NYPD asserts that is understandable because most of the criminal activity is in neighborhoods with predominantly black and Latino populations, the data suggest that even controlling for neighborhood demographics, black and Latino individuals are stopped more often…We are concerned with the enormous increase in stops and frisks over the past decade, the fact that so few lead to arrest or recovery of contraband, and that so much of the impact has been on young black and Latino men. The sheer volume of stops that result in no determination of wrongdoing raise the question of whether police officers are consistently adhering to the constitutional requirement for reasonable suspicion for stops and frisks. “

New York City Bar Association Report on the NYPD’s Stop-and-Frisk Policy. pages 1, 4 

Over time, racially targeted laws and enforcement policies proliferated, and the American criminal justice system became increasingly targeted on African Americans. 

This brings us to mystery number 4, and this is where we come to the hardcore, non-anecdotal evidence that the American criminal justice system would not have deteriorated, the war on drugs would not have occurred and there’d be no mass incarceration in the United States, if not for prisoner disenfranchisement.

Why isn’t this happening anywhere outside of the United States?

Many countries disenfranchise prisoners to some extent, but nobody does it like the U.S.A. 

No other contemporary democracy disenfranchises felons to the same extent, or in the same manner, as the United States.

 “Ballot Manipulation and the ‘Menace of Negro Domination’: Racial Threat and Felon Disenfranchisement, 1850-2000” Berans, Angela, Uggen, Christopher and Manza, Jeff, page 562

In the U.S., 48 states ban virtually everyone in prison from voting, and in most states the ban lasts post release – throughout parole or probation, or even permanently. No other country does that.

First, in the United States, 48 states have blanket bans that bar entire classes of people from the polls, precisely the kinds of policies condemned by Hirst No. 2. The “felony” classification – the most common disfranchisement threshold in U.S. law – includes virtually everyone who is in prison, so it differs dramatically from the narrow, targeted policies employed in some European nations.  And in all but 16 states, these American voting bans affect not only people in prison, but also those living in the community – on probation or parole, or after completing all aspects of their sentences.

Out of Step with the World. An Analysis of Felony Disenfranchisement in the U.S. and other Democracies, ACLU, May 2006, page 5 

The United States is the only nation with broad ex-felon voting bans that extend to all former felons in several states.”  

 “Ballot Manipulation and the ‘Menace of Negro Domination’: Racial Threat and Felon Disenfranchisement, 1850-2000” Berans, Angela, Uggen, Christopher and Manza, Jeff, page 562

Most European countries allow prisoners to vote.

“Most European countries allow prisoners to vote.”

Call for prisoners’ right to vote, BBC News, March 2, 2004

Some countries ban some of their prisoners from voting.  For example, France only disenfranchises prisoners convicted of election offenses and abuses of power.

“France excludes from suffrage only those convicted of election offenses and abuse of public power.”

Ballot Manipulation and the ‘Menace of Negro Domination’: Racial Threat and Felon Disenfranchisement, 1850-2000” Berans, Angela, Uggen, Christopher and Manza, Jeff, page 562

In 2006, researchers from the Law and Society Association looked at 105 nations all over the world, comparing the countries that disenfranchise prisoners to those that don’t.

We ask a simple, macro-level question: To what extent are felon voting practices associated with national characteristics such as economic development, democratization, ethnic conflict, and punitiveness?

 “Punishment and Social Exclusion: National Differences in Prisoner Disenfranchisement” page 59

They found clear evidence linking prisoner disenfranchisement to punitive criminal justice policies and high incarceration rates.

We find clear evidence linking prisoner disenfranchisement to low political and economic development, high ethnic heterogeneity, and punitive criminal justice policies.” 

 “Punishment and Social Exclusion: National Differences in Prisoner Disenfranchisement” page 74

“Consistent with expectations, we find prisoner disenfranchisement to be concentrated in less democratized nations with high incarceration rates and low levels of economic development.”

 “Punishment and Social Exclusion: National Differences in Prisoner Disenfranchisement” page 59

Nations with the most restrictive disenfranchisement policies have “far higher” incarceration rates than those that don’t. 

“Finally, nations with the most restrictive disenfranchisement policies have a far higher incarceration rate than those that disenfranchise some or none of their prisoners.”

 “Punishment and Social Exclusion: National Differences in Prisoner Disenfranchisement” page 70

And nations that disenfranchise all prisoners have the highest.

“On average, European nations that disenfranchise all prisoners have the lowest GDP, arc the least democratized, and have the highest incarceration rate.

 “Punishment and Social Exclusion: National Differences in Prisoner Disenfranchisement” page 70

The researchers who discovered the correlation did not try to explain it beyond suggesting that the more people a nation puts in prison, the more punitive it is, and the more punitive it is, the more likely it is to ”deprive prisoners of citizenship rights.” 

“Although our quantitative analysis can only suggest the reasons for this pattern of association, it seems likely that more punitive nations devalue and stigmatize those convicted of crimes and are hence more likely to deprive them of citizenship rights.” 

“Punishment and Social Exclusion: National Differences in Prisoner Disenfranchisement”  page 72

I think they got it backwards.  First comes the loss of citizenship rights, then comes prison. Prisoner disenfranchisement causes the punitiveness, not the other way around.  

The only Western European countries that ban all prisoners from voting the way the U.S. does are the United Kingdom (and maybe Spain).

The 12 European countries that ban voting by all serving prisoners are Belarus,Bulgaria, Estonia, Hungary, Kosovo,Latvia, Moldova, Russia, Slovakia, Spain,the Ukraine and the United Kingdom. With the exception of the United Kingdom and Spain, these are all former Eastern Bloc states with limited histories of universal suffrage, constitutional rights,and independent courts. In the case of Spain, one authority advises that disfranchisement in Spain ‘rarely happens.'”

Out of Step with the World. An Analysis of Felony Disenfranchisement in the U.S. and other Democracies, ACLU, May 2006, page 8

Everything that has happened to the American criminal justice system is also happening in Great Britain.  They say what is happening in the U.S. is just a more excessive version of what is happening in England and Wales.

“Whilst these [American] trends are exceptional in the western world – indeed, Garland (2001: 1) has described them as a ‘pathological phenomenon’ – it could be argued that they are once again merely a more excessive version of what is occurring in England and Wales, where the same period has seen the prison population almost double from 40,000 since 1971.”

Prison Readings: A critical introduction to prisons and imprisonment. Yvonne Jewkes, Helen Johnston.  2006. Pages 285-286

Britain has the most punitive system in western Europe

Britain has the most punitive system in western Europe, with more people incarcerated, as a share of the population, than in Germany and France, according to the Institute for Criminal Policy and Research.

Sharp rise in English jail sentences despite falling crime, Financial Times, April 5, 2016

and the highest incarceration rate,

“As part of a series of events to mark their 140th anniversary, the Howard League for Penal Reform published international imprisonment league tables…The basic findings were as follows: England and Wales imprison a higher percentage of their populations than any other Western European country…Only Eastern European states imprison more than England and Wales.”

England and Wales lead Europe in imprisonment – World Socialist Web Site, January 25, 2006

which has been growing exponentially,

“the [British] prison population is increasing exponentially at a time when crime rates are supposedly falling.”

Women In Prison: A Review of the Current Female Prison System: Future Directions and Alternatives, Internet Journal of Criminology , page 25

and increasingly racist.

“[A] landmark report released today by the Equality and Human Rights Commission … shows that the proportion of people of African-Caribbean and African descent incarcerated here is almost seven times greater to their share of the population.  The report, which aims to set out how to measure “fairness” in Britain, says that ethnic minorities are “substantially over-represented in the custodial system….The commission found that five times more black people than white people per head of population in England and Wales are imprisoned. The ethnic minority prison population has doubled in a decade – from 11,332 in 1998 to 22,421 in 2008. Over a similar period, the overall number of prisoners rose by less than two thirds.”

Randeep Ramesh, social affairs editor, More black people jailed in England and Wales proportionally than in US | Society | The Guardian,  (last visited June 20, 2015).

They say it’s due to changes in public policies.

“The policies implemented in the last decade mean incarceration levels in Britain are now among the highest in western Europe. England and Wales have an imprisonment rate of 155 per 100,000 and Scotland of 149 per 100,000 of the population. This contrasts with rates of less than 100 per 100,000 for most of Britain’s neighbors.”

More black people jailed in England and Wales proportionally than in US | The Guardian, October 10, 2010

Experts and politicians said over-representation of black men was a result of decades of racial prejudice in the criminal justice system and an overly punitive approach to penal affairs.

More black people jailed in England and Wales proportionally than in US The Guardian, October 10, 2010

I’ve read conflicting reports on whether or not Spain disenfranchises all its prisoners, as in the U.S. and U.K.  Some say they do,

The 12 European countries that ban voting by all serving prisoners are Belarus,Bulgaria, Estonia, Hungary, Kosovo,Latvia, Moldova, Russia, Slovakia, Spain,the Ukraine and the United Kingdom. ” 

Out of Step with the World. An Analysis of Felony Disenfranchisement in the U.S. and other Democracies, ACLU, May 2006, page 8

some say they don’t,

Ireland, the Netherlands and Spain are among 18 countries with no ban. ” 

Call for prisoners’ right to vote, BBC News, March 2, 2004

some say they sorta do.

Unlike Ispahani, we also code Kosovo, Slovakia and Spain as disenfranchising ‘some’ rather than ‘all’ prisoners…Spain disenfranchises for certain offenses only.”

“Punishment and Social Exclusion: National Differences in Prisoner Disenfranchisement”  page  70

Spain has the second highest incarceration rate in Western Europe. 

spain is 2sm

World Prison Populations, BBC News  

Spain (140.3 per 100,000) has the second highest rate of incarceration in Western Europe.”

England and Wales lead Europe in imprisonment – World Socialist Web Site 

But why is it so much worse for the U.S. than even England and Wales?

This phenomenon only occurs in countries that distribute government representation on a per person basis.  The power has to come from the people, and not, for instance, from the land they own, in order for there to be any incentive to increase the local population with prisoners.  Equal, or proportional representation didn’t become a reality in Great Britain until the 20th Century, long after the United States, and even a small head start in an exponential process would result in dramatically larger results at any given time.  So at any given time, the problem is much worse in the U.S. than England and Wales. 

In case you’re wondering, the only two U.S. states that do not disenfranchise prisoners are Maine and Vermont. Main and Vermont always have among the lowest incarceration rates of any American state.  In 2013 they were numbers 1 and 2 lowest incarceration rates in the country.  In 2016 they were 2 and 3.

statessm

2013

For the last couple of years, the state with the lowest incarceration rate in America has been Massachusetts.  Throughout most of its history, Massachusetts did not disenfranchise prisoners.  It started in 2000.  It was the last state to do so.


Everybody knows correlation does not, by itself, establish causation.  But in this case there’s no doubt about it.  First of all, causation explains more than just the correlation.  It explains why the increase in incarceration was exponential. It explains the racial disparities in both the U.S. and Great Britain.  And it explains why the problem is so much worse in the U.S. than even England and Wales – because of the U.S. had proportional representation earlier than England and Wales.  None of these things have any other known explanation.

Secondly, we can see the causation happening.  We can see elected officials begging for prisons in order to take advantage of prisoners who can’t vote, and we can see lawmakers generating prisoners for themselves by advocating policies that lead to higher incarceration rates.   

Furthermore, we already know that mass incarceration is caused by changes in law; it’s just the motivation for those changes that remains elusive.  Clearly, the international correlation between prisoner disenfranchisement and elevated incarceration rates shows that prisoner disenfranchisement provides that motivation.

So, the world-wide correlation between prisoner disenfranchisement and elevated incarceration rates exists because prisoner disenfranchisement caused those elevated incarceration rates. 

Which, just in case it needs to be said, means prisoner disenfranchisement caused the elevated incarceration rates in the United States. If not for prisoner disenfranchisement, the deterioration of the American criminal justice system would not have occurred. 

Make America great again

The following is a blatant ploy to get you to share this website with everybody you can.

Mass incarceration, or more generally, the deterioration of the American criminal justice system, is one of those problems that seem unlikely to have any solution at all, let alone one as simple as “let the prisoners vote.”

But once we give prisoners the right to vote, the incentive to incarcerate, and the positive feedback mechanism, will be gone.  Not only will the system stop deteriorating, it will start to improve.  Long-sought reforms will finally start to pass, because there will no longer be lawmakers who think their jobs depend on maintaining a large prison population.  No longer biased by the incentive to incarcerate, the criminal justice system will right itself.

On the other hand, if we don’t give prisoners the right to vote, any improvements that we do make will be temporary or superficial, because the bias favoring incarceration will remain. Prisoners are too valuable to too many people for it not to affect our collective judgement.

It’s just one law that needs to be changed.  But it needs to be changed in every state.  Every state other than Maine and Vermont, that is.  And maybe it’s time to consider amending the Constitution, so as to guarantee the right to vote to everybody, not to be taken away for any reason at all.

But before any of that can happen, people have to be made aware of the relationship between prisoner disenfranchisement and mass incarceration. 

So, do me a favor and share this page.  And, if you haven’t already, go back to Part 1, Backyard Prisoners and share that too.  

Prisoner disenfranchisement serves no purpose.  It is not a deterrent.  Nobody doesn’t rob a liquor store because they’re afraid of losing the right to vote.

By the way, don’t worry about Hardin, Montana. They finally found some alcoholic Native Americans to lock up, so “it’s all good.”

Now local officials said they at last have found a legitimate and reliable operator for the 464-bed jail…Warden Ken Keller says Two Rivers has taken in almost 60 inmates in recent weeks from American Indian reservations in Montana, Wyoming and North Dakota. Most are serving time for alcohol or drug crimes … Eventually, Hardin stands to receive 50-cents per inmate, per day, said Jon Matovich, who chairs Hardin’s economic development authority, which owns the jail…

“All the Gitmo and Michael Hilton stuff was kind of a black eye in the way those things turned out, but it’s all good now,” Matovich said.

Jail with checkered past takes in Native American inmates to fill empty cells, The Guardian, October 9, 2014

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