Jail-Based Voting Rights Are a Key Part of Criminal-Legal Reform

By Imani Brooks

Roughly 750,000 Americans are in jails at any given time, and most of them are legally able to cast ballots. But few are able to, simply because jail officials do not have voting programs that encourage people to exercise their right to vote. In most instances, the lack of procedures to facilitate voting means the right to vote is inaccessible for voters in jail.

Most people in jail are there for pretrial detention, a type of detention that never impacts a person’s eligibility to vote. However, only 50 people out of the 13,000 eligible voters in Wisconsin jails cast a vote in the 2020 election. In the March 2020 presidential preference election in Arizona, there was a 0.26 percent participation rate of eligible voters in jail, 187 times less than the overall turnout rate for the election. In Adams County, Pennsylvania, 10 people in jail requested and were provided with 2020 mail-in ballots out of the 261 people in jail — and that was at a jail that All Voting is Local’s new report found has the best practices for jail-based voting.

Contact with the criminal-legal system should not impact your right to vote. Democracy only works when all voices are heard, including those of historically disenfranchised communities. Eligible voters in jail deserve better policies to fix the election administration system and improve their access to the ballot box.

Impact of Denial of Voting Rights

When eligible voters are denied their fundamental right to vote, the number of Americans who lose faith in our democracy increases. America is built on pro-voter values. It is a part of the American identity to be able to elect local, state, and national leaders who are responsive to the voters’ needs and reflective of the vast identities throughout the country. Currently, people who interact with the criminal-legal system are locked out of this fundamental process and our democracy is burdened with participation gaps across demographics and unrepresentative bodies of government.

The scope of disenfranchisement for felony convictions is the usual conversation point for change in the criminal-legal system. Eliminating disenfranchisement laws for formerly incarcerated people would increase the electorate by 5.2 million people. In the past 25 years, about half of the states have scaled back voting restrictions for people with felony convictions, but many states have retained such restrictions.

Overpolicing leads to more jailed people, even if they are ultimately not charged. Overpolicing not only formally disenfranchises those convicted, but also disenfranchises in practice — due to the inaccessibility of voting — people who are jailed for pretrial procedures. The flawed cash bail system increases the number of eligible voters stuck in jail during elections. Because people who are unable to afford bail are detained for weeks or months, nearly half a million people sit in jail each day when they are legally innocent of the charged crime. Cash bail disproportionately impacts communities of color, and the impact of this system trickles down to their access to the ballot box.

Communities of color are overexposed to the criminal-legal system in a way that weakens their political power and makes people less likely to vote. The more a community is policed, the less likely they will be able to have a voice in the political process that governs them. Voters’ political power is important, and it is especially impactful in local elections that can hinge on a few hundred votes. When voting is protected for incarcerated people, the electorate gains lifelong voters. Furthermore, denying people in jails or with convictions their voting rights dilutes the relative power of candidates and parties who would represent their interests, or are likely to end overpolicing and be supportive of criminal-legal reform. Unless we take action now to ensure that jails make registration and voting accessible to all eligible people, hundreds of thousands of voters’ voices will be silenced in the next election.

The Policies We Need

Although the vast majority of this population is eligible to vote because they are either awaiting trial or serving a non-felony sentence, few places have enacted provisions for electoral participation. The lack of policy creates gaps in the system that can disenfranchise eligible voters in jails. Protections for voters in jail are not reflected in most state laws. Even if a detainee files a lawsuit, the result is rarely proactive and it is difficult for those kinds of cases to get in front of a judge. Eligible voters in jails need statewide practices to ensure that everyone who is eligible to vote can get registered and then exercise that vote.

The ability to vote depends mostly on having supportive jail administrators and election officials to help facilitate voter education drives and elections. The onus should not be on incarcerated people to alert election officials and staff to access their right to vote. Dedicated staff to monitor and manage jail-based voting should develop a proactive approach to voting in jails. As highlighted in All Voting is Local’s new report, clear and consistent voting policies would designate a voting point person, build relationships with county elections offices, update its communications to people in jail to be in accord with the most recent legal changes, and proactively encourage people in jail to participate in elections.

Supporting jail-based voting rights is just one part of ensuring that all eligible Americans have the freedom to vote. There are long-term legislative recommendations that connect jail-based voting rights to broad transformation of the criminal-legal system. We move our nation closer to fulfilling the promise of our democracy when everyone is allowed to vote regardless of felony conviction, when there is a mandate for voting access and resources within county jails, when the right to vote is extended to the right to vote via an agent, and when there are more options for proof of identity. 

Value of Jailed Voters’ Voices in their Communities Via Voting

Taking away an incarcerated person’s right to vote is not a justifiable consequence of incarceration. If the policy recommendations in All Voting is Local’s report are implemented, communities will add valuable voices in their elections. Our collective voices matter and increasing access to voting for people in jail is a part of that.

The documented benefits of letting currently or formerly incarcerated people vote support the jail-based voting rights movement. And there’s no excuse for denying the right to vote to those in jail who are already eligible. Restoring voting rights to people impacted by the criminal-legal system aids in their transition back into their communities by creating pro-social behavior and civic engagement that is linked to desistance from crime. Eligible voters in jail have critically important things to say about how our government is (or is not) working. People in jail have firsthand knowledge of the criminal-legal system and offer an important perspective on holding the system’s elected officials — including judges, prosecutors, and sheriffs — accountable.

Transforming the criminal-legal system means that we no longer equate going into the system with restricting the freedom to vote.

Imani Brooks was a summer 2021 legal intern at The Leadership Conference on Civil and Human Rights.