Civic Death and the Afterlife of Imprisonment

It’s primary season, and once again I am reminded at just how little the rest of the country cares about the disenfranchisement of the District of Columbia. I usually salve my irritation with the knowledge that individual votes are unlikely to sway an election, so I am largely unharmed personally. The problem, of course, is that the disenfranchisement of a large group of people who share some interests does seem likely to have serious policy effects, as those interests are systematically ignored. (Perhaps a more powerful argument defending the loss of DC’s voting rights in federal matters is that it might force us to attend to local politics where decisions are both consequential and close enough to our lives to be noticed. So far, though, I am unimpressed.)

In any case, my neighbors and I are not alone. Vann Newkirk has a piece in the Atlantic challenging felon and prisoner disenfranchisement:

The origins of disenfranchisement as a vehicle of American punishment are likely traceable to some form of the classical notion of a “civil death.” For the Greeks, the punishment of civil death was akin to capital punishment—a complete extinguishing of the civil rights that Greeks believed constituted personhood, including suffrage, landownership, and the right to file lawsuits. English common law borrowed the Greek concept, and civil death was long viewed as a suitable punishment for felony offenses.

But civil death as a formal punishment in the American colonies differed from the English system on which it was based, and from the punishments that would later evolve. Civil death was initially only adopted in America for a very small number of felonies, the most common of which were violations directly connected to voting—for example, fraud or bribery. This paralleled both an expansion of crimes considered felonies and a decoupling of felony punishment from capital punishment. The use of long-term imprisonment, instead of corporal or capital punishment, only came about in fits and starts.

It doesn’t have to be that way. In Maryland, former felons are regaining their voting rights this year, and that affects some of the graduates of the JCI Prison Scholars Program! It’s pretty great.

For too long, we have begun to imagine that violators of the social contract are somehow unable to participate in its revision. In a world without ungoverned spaces, it’s no longer possible to exile our trangressors into the wastes. But what we do instead is significantly more cruel: exiled to social and civil death, prisoners are meant to continue to live in our midst while occupying as little of our time and energy as possible. They’re invisible men whose future is supposed to hold no future except to be ignored.

Yet the fantasies of social death are pernicious precisely because they imagine no return. The reality is that most of these men must someday rejoin the communities from which they have been exiled. People come back. What’s more, they’re never really that far away.

Their lives and ours are still bound together: at the very least we still pay to keep our fellow citizens incarcerated, we still send some of our fellow citizens inside to guard and “correct” them. But it’s also worth remembering that the prison’s walls are remarkably permeable. Guards and visiting family stream in and out. Gang members inside help their outside colleagues agree to cessation of hostilities.

If we were still able to punish our criminals with exile or death, it would be much easier. Instead ghosts still haunt us long after their social death. Fathers and mothers still parent their daughters and sons from within the prison’s walls. Husbands have long arguments and tender reconciliations with their wives as phone calls and letters go back and forth at great expense. And in most cases, the men and women who go off to prison must eventually shamble back from the social death we’ve wished upon them.

I still don’t know if there’s room for prisons in a just society. Our vengeful impulses seem to require some sort of satisfaction, and imprisonment might just be the fairest one remaining. But I do feel confident that those prisons cannot be premised on social death any longer.

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