Jails disenfranchise thousands who have a constitutional right to vote The majority of people in state and local facilities haven't been convicted of a crime. And in many states, they may still be kept from ballot box.

Thea Sebastian and Ariel White | Opinion contributors

If projections are correct, a record-breaking number of people could flock to the polls during next year's presidential election. Unfortunately, about half a million people who have a constitutional right to cast a ballot may be left out.

Our nation's “jail disenfranchisement” crisis has escaped widespread attention. While advocates have increasingly highlighted the direct and indirect ways that states use felony convictions to disenfranchise 6 million individuals nationwide, most policymakers are unaware that our overused and under-lawyered jail system is also undermining democratic participation — even among people who haven't lost their voting rights and often have not been convicted of a crime.

Understanding jail disenfranchisement starts by understanding jails.

Lack of money, lack of representation

Today, more than half a million people incarcerated in local jails — nearly two-thirds of the U.S. jail population — are legally innocent and simply awaiting trial. Often, these individuals are jailed because they cannot pay a monetary bail set far beyond their means. In short, they’re incarcerated because they’re poor.

In addition, many people are serving misdemeanor sentences skewed by race and class.

As Alexandra Natapoff writes in "Punishment Without Crime," the “petty-offense system” — the machinelike prosecution of low-level offenses, such as drug possession or driving on a suspended license — has been a significant way of criminalizing blackness.

Misdemeanor arrests are disproportionately concentrated in black communities, largely because of racial inequities in policing patterns, and the ensuing prosecutions often lack the basic trappings of due process. Frequently people arrested for misdemeanors don't even have a lawyer. When a public defender is available, this attorney often lacks the time and resources to investigate the case. Consequently, many innocent people take guilty pleas because no lawyer or investigator is available to review the evidence or interview witnesses — or simply because, having spent months detained pretrial, they’re desperate to get home.

This overuse of U.S. jails is devastating families nationwide. It’s also a big problem for our democracy.

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State laws make voting difficult

Although individuals detained pretrial have a constitutional right to vote, state laws and the realities of incarceration often make voting impossible.

People jailed just before Election Day commonly find that they have missed their state’s deadline for requesting absentee ballots. And though many states have exceptions to these deadlines, which apply to people who face unexpected hospitalization, or other last-minute emergencies, states frequently don’t structure these emergency exceptions to include pretrial detention. This distinction is unfair. It’s also unconstitutional.

States differ markedly in their voting and registration processes causing marked confusion among incarcerated individuals and election officials alike. Few people understand the governing law, including what happens when they are released or when their residence suddenly changes. In addition, many lack the identification necessary to register and vote.

Compounding this issue, detained individuals lack ways to obtain basic information regarding the candidates, registration deadlines or other elements of the election process. Many incarcerated people don’t even know whether they’re eligible and fear prosecution if they get things wrong.

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Experiences with police, jails or prisons can make people cynical about how government works, leaving them skeptical about whether politicians care about their perspectives. Being briefly jailed for a misdemeanor can make people substantially less likely to vote in future elections, according to a study that one of us published this year on misdemeanor disenfranchisement.

And these demobilizing experiences are not evenly distributed. They are concentrated in poor and minority neighborhoods that experience a high number of arrests and a high volume of incarceration. Communities already struggling to get their needs met face the additional barrier of lower voter turnout, denying them the political representation they deserve and making it even harder to get political attention.

Solving the crisis

State lawmakers and election officials must act swiftly to ensure that detained individuals can exercise their right to vote. Local sheriffs and election officials should make plans to facilitate jail voting.

In states that have deadlines for requesting absentee ballots, policymakers should add an emergency exception for people who are unexpectedly detained.

They should increase education efforts and help detained individuals register.

Illinois recently passed a bill creating a polling place within the Cook County jail, which houses roughly 5,500 Chicago-area residents at any given time. Other places with large jail populations should consider creating such polling places.

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And finally, we must reduce our over-reliance on jails.

Policymakers must reform the criminal-legal system to reduce pretrial detention dramatically, reinvigorate our much embattled right to counsel, stop using jail time for minor offenses, and invest in the noncarceral programs and services that actually keep communities safe.

These changes are necessary to both transform the system and strengthen the civic participation that is the lifeblood of our democracy.

Thea Sebastian is a civil-rights focused policy attorney based in Washington, D.C. Ariel White is an assistant professor of political science at the Massachusetts Institute of Technology, and author of the study "Misdemeanor Disenfranchisement? The Demobilizing Effects of Brief Jail Spells on Potential Voters."