In the APSA Public Scholarship Program, graduate students in political science produce summaries of new research in the American Political Science Review. This piece, written by Dara Gaines, covers the new article by Nicholas Eubank and Adriane Fresh, Duke University: “Enfranchisement and Incarceration after the 1965 Voting Rights Act”.
The passage of the 1965 Voting Rights Act (VRA) is largely seen as a turning point in American enfranchisement, outlawing Jim Crow policies of voter suppression like poll taxes, literacy tests, and grandfather clauses. In their article, “Enfranchisement and Incarceration after the 1965 Voting Rights Act,” Nicholas Eubank and Adriane Fresh investigate the effects of this turning point beyond the enfranchisement of Black Americans. They argue that while the VRA resulted in major political gains for Black Americans, perversely it also increased their incarceration. The authors find that states covered by Section 5 of the VRA—which required jurisdictions to pre-clear voting rule changes to ensure that they would not discriminate—were those where Black incarceration rates increased the most after 1965, even when compared to other states with a history of related Jim Crow policies.
In making this finding, Eubank and Fresh draw from a rich theoretical scholarship proposing that the Civil Rights era was a key turning point in the relationship between race and the carceral state in the U.S., ushering in a so-called “New Jim Crow” era characterized by the de facto use of the carceral state for social and political control. Enfranchisement, Eubank and Fresh propose, may have resulted in the growth of race-specific incarceration as whites reacted one of two ways. The Diffuse Reactive mechanism works through the people. The general public had intense emotions regarding the sudden enfranchisement of Black Americans. Political elites were concerned with securing votes from such disgruntled voters and may have attempted to satiate their fears via the race-specific application of punitive policies. The second mechanism, the Instrumental Political mechanism, describes a top-down process where white elites utilized their institutional authority to disenfranchise Black voters through incarceration to instrumentally protect their political power.
The implication of this “New Jim Crow” argument, Eubank and Fresh contend, is that Black incarceration rates should have grown more after the VRA closed the curtain on Jim Crow, and more in those states where policies of race-based voter suppression were more intensely utilized, which were in turn the places where the VRA produced more substantial enfranchisement. As a
consequence, states covered by Section 5 of the VRA should be those most likely to see a post-1965 increase in Black incarceration, even compared with other states with a history of Jim Crow policies.
To empirically evaluate this implication, Eubank and Fresh compile a novel dataset of state-level historical prison admissions data from the Bureau of Justice Statistics and archival prison intake rosters. Their dataset includes 18 covered and uncovered states with a history of Jim Crow policies over the period 1946-1982.
Eubank and Fresh use these data to estimate models that relate coverage under Section 5 of the VRA to Black prison admission rates and the gap between Black and white admission rates across their sample of 18 states in the mid-20th century. The models highlight a clear increase in incarceration in counties and states covered under Section 5 of the VRA. Their results document a more than 30% increase in both the Black incarceration rate and a more than 50% increase in the gap between Black and white incarceration rates.
“The authors emphasize the political agility of incumbents and the diverse strategies that elites have as they react to challenges to their political power.” While these patterns are consistent with the New Jim Crow argument, the results are also consistent with an alternative theoretical argument: that Black people used their newly-won political power to enhance punitive criminal justice policy after 1965. This argument explores the possibility that the increase in incarceration rates was a result of Black people’s preference for punitive criminal justice policy. Section 5 of the VRA secured the opportunity for Black people to vote, and therefore their preferences should have been more likely to be reflected in state government processes like criminal justice. For this alternative argument to explain their results, it must be the case both that (a) the policy preferences of newly-enfranchised Black voters were more punitive than white voters who would otherwise have been in political power, and (b) that Black voters had the political power to impact policy following passage of the VRA. To understand Black people’s preferences at the time, Fresh and Eubank compile public opinion data from the time of the VRA’s passage. If the Self-Policing argument explains their results, the authors expect Black respondents would prefer harsher penalties which could have led to increased incarceration. However, these data revealed that in the mid-century US, Black respondents were less likely to support increased punitiveness by police officers or the criminal justice system generally which led the researchers to dismiss the argument.
To understand Black political efficacy, the authors relate both the size of the Black electorate and the presence of local Black elected officials to novel county-level race-specific prison admissions data from Georgia, Alabama, and Tennessee. They find no evidence that majority-Black electorates were more likely to differentially incarcerate Black people after 1965, nor that this was the case in localities that elected Black politicians. In counties with Black elected officials, Black incarceration rates grew more slowly than those without any Black Elected officials. Based on this evidence, the authors conclude that their findings are more likely to have arisen via the “New Jim Crow” mechanisms.
These findings point to two powerful takeaways. First, the authors demonstrate the necessity of considering the diverse potential consequences of shifting political power. The authors emphasize the political agility of incumbents and the diverse strategies that elites have as they react to challenges to their political power. Their second, and most hopeful takeaway, invites readers to consider the opportunity afforded by institutional change. The modern system of mass incarceration, though intimidating, is not permanent. The authors encourage readers by noting that the same tools—i.e., political power—that built it can be used to change it.
- Dara Gaines is a PhD student in the Department of Political Science at Northwestern University. She conducts research in the areas of Black Politics, public opinion, voter behavior and place identity. Her dissertation research explores how rural African Americans experience political incorporation in the South. Professionally, she works as a consultant to various political campaigns and agencies.
- EUBANK, NICHOLAS, and ADRIANE FRESH. 2022. “Enfranchisement and Incarceration after the 1965 Voting Rights Act”, American Political Science Review, 1–16
- About the APSA Public Scholarship Program.