Voting Rights

Bernie Sanders Is Right: We Should Let the Boston Marathon Bomber Vote

Incarcerated people are already paying their debt to society. What good does it do the rest of the population to take away their right to have a say?


One of the more noteworthy points of discussion from Monday night's series of town halls with 2020 Democratic presidential candidates focused on whether or not convicted felons should be allowed to vote while incarcerated.

Sen. Bernie Sanders (I–Vt.) certainly seems to think so. "This is a democracy and we have got to expand that democracy, and I believe every single person does have the right to vote," he said. Sanders was specifically asked if Dzhokhar Tsarnaev, who helped carry out the 2013 Boston Marathon bombing which killed three people, or other felons, like those convicted of sexual assault, should be able to vote.

"Yes, even for terrible people, because once you start chipping away and you say, 'Well, that guy committed a terrible crime, not going to let him vote. Well, that person did that. Not going to let that person vote,' you're running down a slippery slope," Sanders explained. "So I believe people commit crimes and they paid the price and they have the right to vote. I believe even if they're in jail they're paying their price to society but that should not take away their inherent American right to participate in our democracy."

Sanders admitted his views on this issue were controversial, acknowledging that his opponents would likely use his remarks to attack him. Conservative activists did indeed slam his comments, with Donald Trump Jr., Republican National Committee Chairwoman Ronna McDaniel, Turning Point USA founder Charlie Kirk, and others criticizing him on Twitter.

What about the other Democratic candidates? Well, South Bend, Indiana Mayor Pete Buttigieg said felons should not be able to vote until they're released from prison. "Part of the punishment when you are convicted of a crime and you're incarcerated is you lose certain rights. You lose your freedom," he said. "And I think during that period, it does not make sense to have an exception the right to vote." Sen. Kamala Harris (D–Calif.) had a less committal response to the question, saying: "I think we should have that conversation."

So what can libertarians take away from all this? The way I see it, Sanders is spot-on. Let's assume that every person who's been convicted of a felony and locked up in prison deserves to be there. (It's a bold assumption, but humor me.) There are about 2.3 million people incarcerated nationwide, though when you only count the people who've actually been convicted of crimes, that number is probably closer to 1.7 million, according to the Prison Policy Initiative. The disparity exists in part because many people accused of crimes don't have the money to afford bail, and are just locked up until they're either convicted or found not guilty.

Again, imagine each of those convicts, like the Boston bomber, is in prison for a good reason. If that's true, then they're already paying their debt to society by being incarcerated. What good does it do the rest of the population to take away their right to have a say? Are incarcerated individuals going to plan a mass conspiracy in order to get a rapist elected president? Or a pro-crime candidate? Probably not, and they wouldn't have a large enough voting bloc to elect such a politician even if they wanted to.

"Even if there were this sort of mythical pro-crime candidate running for office, or even someone whose positions on crime are totally different than your own, you can't not allow people to vote based on your fear that they're going to vote for someone," notes Scott Novakowski, a legal fellow with the New Jersey Institute for Social Justice. "That's not democracy. That's not what we do."

And it's far more likely that incarcerated individuals will vote for politicians with good stances on policies that actually affect them, rather than for so-called "pro-crime" candidates.

Consider the example of Patrick Murphy, who was convicted of murder for his role in the 2000 killing of a Texas police officer and sentenced to death. By all accounts, Murphy has led a bad life. He'd previously been convicted of sexual assault, and he admits to being involved in a prison escape and botched robbery that led to Irving Police Officer Aubrey Hawkins' death. But while he did not pull the trigger or have direct involvement in Hawkins' murder, Murphy was eligible for the death penalty due to Texas' law of parties. It's an unfair punishment, as I've previously argued. So shouldn't he be able to vote for a politician who might change the law, thus saving his life?

There are plenty of candidates who support criminal justice reform measures like reducing drug sentences or banning solitary confinement. Shouldn't the people who will be affected by those measures the most be allowed to cast their ballot for those candidates, if they so choose?

The point is, there are a host of issues that affect prisoners. Not giving them any sort of say undermines our democracy, and it means that prison abuse may just continue. Pregnant women will continue to be shackled during labor, male and female inmates will continue to be thrown into solitary confinement, and prisoners will continue to be sexually assaulted, often with no accountability for their assailants. (Many law-abiding citizens, after all, won't be motivated to change the system in the same way that people directly affected by the system are, and might not even be aware of prison abuse problems in the first place.) And while the Boston bomber and those convicted of murder and sexual assault are bad people, to be sure, they still shouldn't be terribly mistreated while incarcerated.

Now, remember how I said before that we were going to assume each incarcerated individual is in prison for a good reason? Well, that's not exactly true. Aside from wrongfully convicted individuals, there are hundreds of thousands of people incarcerated for nonviolent crimes, including drug offenses. Simply said, plenty of people who are in prison deserve to be free. Don't they deserve to have a voice in American democracy as well?

Sanders' remarks highlight how far we've come in addressing disenfranchisement among those convicted of crimes. As seen by the response to his comments, we're still a long way from letting felons vote while they're in prison (Restrictions on felons' voting rights are technically constitutional, per the 14th Amendment).

But there has been considerable progress toward allowing ex-felons who've served their time to vote. On the federal level, Sen. Rand Paul (R–Ky.) has been pushing to restore ex-felons' voting rights since at least 2014. While he's had mixed success, similar state efforts have succeeded.

In November, for instance, Floridians overwhelmingly approved a measure restoring voting rights for 1.4 million people with felony records. As Reason's C.J. Ciaramella wrote at the time, more than 30 states still have laws on the books that restrict ex-felons' voting rights.

We've clearly seen progress on this issue, and the fact that presidential candidates are even debating whether incarcerated individuals should be allowed to vote is itself a positive development.