Preserving Dignity: Rethinking Voting Rights for U.S. Prisoners, Lessons from South Africa
Introduction 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.