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“We Did The Crime, We Did The Time. Now Let Us Vote”

Tayna Fogle.

CREDIT: Screenshot from "The Power Of Voice."

In 1991, the Dow Jones was up over 3,000 points, “Clarissa Explains It All” made its television debut, and Tayna Fogle was being sentenced to ten years in prison for forgery and drug possession.

She tells me this now in a sparsely furnished, windowless office in the back of a church in Lexington, Kentucky on a late April afternoon. As she sits in her office chair, she recounts her fall from grace and rise to redemption.

She pauses.

“I’d like to stop right here and say that I am a graduate of the University of Kentucky, captain of the basketball team…and made some bad choices in my life.”

Fogle seems like any other Southern grandmother: bright eyes, sharp wit, and jet black hair tucked beneath a scarf. It’s difficult to imagine her struggling with the crack cocaine addiction she harbored over two decades ago.

Stigma is one of the most pervasive barriers facing former felons returning to society–it negatively impacts job prospects, personal relationships, and civic engagement–namely, voting.

Millennials are the second-largest voting-age demographic group in the nation, but only 46 percent of young people voted in the 2012 general election, a full 15 percent lower than any other group. A 2015 Harvard survey of 18-29 year-olds attributed the trend in part to low levels of trust in local, state, and federal officials. But some Millennials don’t vote for one simple reason: they can’t.

In 2013, young people ages 18-29 composed 27.7 percent of state or federal facilities, while inmates 30-34 made up another 16.7 percent. Although research indicates that young people usually age out of crime, in three states (Kentucky, Iowa, and Florida), they must live with the consequences of their mistakes forever.

According to the Brennan Center for Justice, nearly 75 percent of disenfranchised Americans are working in the community. Research suggests allowing them to vote discourages recidivism, or re-entry into the prison system, because the responsibility re-integrates them into the general public.

Disenfranchisement is one more barrier to rehabilitation for people with a criminal record. A 2012 Berkeley study estimated that prisoners released in 1994 were 10 percent less likely to return into the criminal justice system if they were in states that temporarily revoked voting rights versus states where disenfranchisement was permanent. A Florida Parole Commission study found that the 11 percent recidivism rate among formerly incarcerated people with restored voting rights was 22 percent lower than the overall state average.

So why do states revoke the right to vote? According to the Sentencing Project, the revoking of voting rights begin in the Civil War era, but stemmed from the ancient Greek and Roman practice of “civil death,” that is, the permanent stripping of certain rights and civic duties as a punishment for a crime.

Most states have varying restrictions on felon voting until an individual has completed some level of their judicial sentence. The practice disenfranchises about 5.8 million Americans, or one in 40 adults. But in Kentucky, people with criminal records can usually never vote, even after they’ve served their time, parole, and probation, unless pardoned by the governor’s office.

In late 2015, former Kentucky Governor Steve Beshear (D) passed an executive order restoring voting rights to over 140,000 of the state’s “returned citizens” who committed non-violent felonies. However, his successor, Governor Matt Bevin (R), overturned the order during his first month in office, saying the choice should have been posed to citizens in a referendum.

Fogle was one of the lucky ones. She petitioned her case to the governor and eventually won a pardon, but only after 13 years and two failed attempts. On the first try, she paid a $2 fee and submitted a short application. She was pardoned, but due to an office clerical error was unable to register. She tried again under the next governor, who required an essay, three character references, and another $2 fee, but the governor’s office inexplicably lost her application. Fogle was asked to try again, this time physically delivering her application to the state capitol, and won.

Though she eventually won back her right to vote, she still takes issue with the hurdles she had to jump in the process, which she considered reminiscent of Jim Crow laws.

“Can you imagine the people who are illiterate, who wouldn’t even be able to write the essay?,” she asks. An estimated 70 percent of the nation’s incarcerated population cannot read or write above the fourth grade level, according to the literacy organization Begin to Read.

“I don’t know about you, but just before I committed the crimes, I couldn’t hardly get three character references then, let alone after I came out of prison.”

Two governors later, the process today is a bit more lenient. Kentuckians with a criminal record may submit a simplified paper application to the state department of corrections, which may take up to 12 weeks to process. But even attempting to register to vote before civil rights are formally restored could be penalized with a five-year prison sentence.

Fogle remembers her first time voting as a free woman vividly.

“I remember it like it was yesterday…when my mom had taught me how to vote, we pulled a lever. When I came out of prison, it was digital! So I’m in the booth, and I really didn’t know how to navigate it. And people were like, ‘would you please c’mon?’ I heard it so many times I just opened that curtain and I said, ‘It has taken me 13 years to vote and you will wait!’” she recalls, chuckling.

For the past few years, Fogle’s been tired of waiting too. She’s fought for people who are in her former situation. She’s mentored current inmates, shared her story, and advocated in legislative sessions for amendments to the law that disenfranchises over 240,000 people in Kentucky, nearly 25 percent of them black.

“Until I take my last breath, I will fight for everyone, but I’m definitely going to fight for our people…We did the crime, we did the time. Now let us vote,” she says.

Fogle’s request would have been a reality if it weren’t for the failure of Kentucky House Bill 70. The bill would have allowed voters to decide in the November election to allow some formerly incarcerated people to vote. It was pre-filed by a bipartisan group of 15 sponsors in May of 2015, but wasn’t introduced in the liberal-controlled House until January of 2016; a month after Governor Matt Bevin took office. The measure passed the House but has been stuck in the conservative-controlled Senate Judiciary Committee since February, stalled, as it has been every opportunity for the past 11 years. Since the bill in effect would be a constitutional amendment, it can only be proposed on even-numbered years, according to state law. That means unless the governor reinstates his predecessor’s executive order, Kentuckians with a felony record have no hope of voting until 2018.

The issue of voter disenfranchisement brings into question the disparity between incarceration rates in various communities, and the reason why black and Latino people are disproportionately disenfranchised.

“When crack cocaine, which I was addicted to, came into our community, the government built more prisons. And that’s where many African Americans are…When meth and pills [and heroin], which are predominantly ‘white drugs’ hit the community, they built recovery centers. So there’s not a real big push for House Bill 70 to be passed because there’s all these recovery centers that other populations have access to. So they don’t get the felonies,” Fogle says.

Crack, used mostly by black people, and cocaine, used mostly by white people, were extremely popular in the 1980s and 90s. Despite their nearly identical chemical makeup, crack was punished 100 times harsher than cocaine in the courts, until 2009, when the Fair Sentencing Act reduced the ratio to 18:1. Still, the sentencing disparity led to high arrest and incarceration rates in low-income communities of color, which continues to this day.

The “War on Drugs” and “tough on crime” policies date back to the Nixon era, when the former president deployed the Southern strategy–using coded language about crime and race to garner support from prejudiced white voters in the South. As one former Nixon adviser recently put it to Harper’s Magazine:

“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

Not only did the practice lead to high incarceration rates and losses of generations in the black community, Fogle says disenfranchising a disproportionate number of black people is just another way they have been marginalized in the US.

“My mother, my grandmother and my great-grandmother were all hosed. They saw the dogs. We already came through this once,” she says as her voice breaks. “And they taught us the value of voting, and what our people came through. Taking away the right to vote is just like a dog. It’s just like a hose. It’s just like being beaten by police.”

“It’s just quieter,” she whispers.

Since her civil rights were restored, Fogle has become more politically active than ever. “I do know this: ever since I was allowed to vote, my community has become more important, more important than going back to prison. I get to add to my community instead of taking from it. Isn’t that what everybody wants?”

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