The case for letting prisoners vote – Reuven Ziegler
24 May 2012
Last Tuesday saw the latest episode in the prisoner voting legal saga with the European Court of Human Rights’ Grand Chamber’s judgment reversing the Chamber judgment which found Italy’s automatic ban on voting for prisoners serving over 3 years in prison (and a lifetime ban with the possibility of future relief for those sentenced to more than 5 years) in breach of Article 3 of Protocol 1 to the European Convention on Human Rights.
Adam Wagner has compared the prisoner voting issue to a ping-pong ball in a wind tunnel, noting that ‘the ball is now back on the UK’s side of the table’. Indeed, the UK must still allow at least some prisoners the vote, as required by the 2005 judgment in Hirst v UK (No.2) and the 2010 judgment in Greens & MT v UK. Over at EJIL: Talk!, Marko Milanovic rightly accounts for the unholy mix of law and (inter)national politics that has generated the Grand Chamber’s unprincipled judgment. Indeed, as Carl Gardner suggests on the Head of Legal blog all that logically remains of the Hirst judgment is that automatic disenfranchisement of prisoners that are sentenced for less than 3 years (probably) breaches the convention.
The debate in this country has unhelpfully tied together concerns that the Strasbourg Court is exceeding its competency with the substantive question, namely whether prisoners ought to have the right to vote. This conflation was most evident in the House of Commons Debate last February. Indeed, reflecting on Tuesday’s judgment, the Telegraph states that [‘t]his is no longer about prisoner votes but national sovereignty.’
So let us imagine that, rather than in Strasbourg, the ruling had been made in Parliament Square, by the UK Supreme Court: indeed, courts in South Africa, Canada and post-British Hong Kong have handed down judgments annulling state legislation disenfranchising prisoners. While a global consensus has yet to emerge (the clearest outlier being the United States) disenfranchisement has become a suspect practice and, as my full-length paper on the subject suggests, rightly so.
Britain has thankfully moved from a Victorian era perception of “civic death” and of convicts as “slaves of the State” whose deprivation of liberty entails revocation of all (other) rights. Convicts are instead increasingly perceived as rights-bearers who retain after their conviction all the rights “which are not taken away either expressly or by necessary implication”. Restrictions on the exercise of rights that are not an inevitable consequence of lawful detention, like disenfranchisement, thus require independent justifications.
Those who support disenfranchisement as a regulatory measure frequently argue that it is a societal reaction to breaches of the ‘social contract. However, if law-abidance becomes a voting qualification, then contractarians may seem arbitrary when they support selective disenfranchisement of law breakers. Moreover, the legitimacy of punishments, arguably, depends on the legitimacy of political processes that produce and enforce criminal law which, in turn, depends on citizens’ ability to participate equally in choosing representatives who decide which behaviour to outlaw, which individuals to prosecute, and which punishments to impose.
Concern is also raised that convicts possess negative character traits and that the body politic should be protected from corruption, immorality, and untrustworthy behaviour. However, in the twenty-first century, universal suffrage suggests that voters are a heterogeneous lot, and possess diverse personal traits; voting eligibility is based on political equality, rather than on particular moral virtues.
An additional punishment
Fundamentally, disenfranchisement follows a criminal conviction and should first and foremost be viewed an additional punishment. As such, disenfranchisement is more likely to exacerbate feelings of marginalization and alienation and inhibit re-integration into society, negating possible rehabilitative effects of other punishments. While incapacitation generally aims to prevent convicts from committing future offenses, paradigmatically by incarceration which limits their interaction with general society, no correlation has been proven between committing non-electoral offenses (the vast majority of imprisonable offences), and propensity to commit electoral offenses; moreover, prisons provide surveillance conditions which may decrease the likelihood for electoral offences.
The case for disenfranchisement is thus essentially one about retribution; this is where the Grand Chamber has (mis)applied the proportionality and individuality requirements, which require taking into account both the gravity of the offence and the personal circumstances of the offender; automatically tying disenfranchisement to sentences of more than 3 years, as the Italian legislation does, is impersonal and arbitrary.
Cutting off thieves’ hands
I want to argue, however, that even if disenfranchisement can be shown to satisfy one or more of the penal goals considered above, it is a punishment that a liberal democracy like Britain ought not to impose due to its adverse effects and normatively flawed nature. Despite the direct link between stealing televisions and cutting off thieves’ hands, physical mutilation is considered abhorrent. Similarly, even if it can be shown that the infliction of torture as a punishment is effective, the imposition thereof is prohibited in widely ratified international treaties. On this side of the Atlantic, the use of the death penalty is proscribed even in the most heinous cases before the international criminal courts. Penal systems which display disrespect, indignity or degradation are objectionable, because these are intrinsically inappropriate ways for societies to treat their members.
Disenfranchisement degrades convicts by intentionally denying them political rights, which they previously possessed, and which are retained by all other mentally competent adult citizens. It arguably institutionalizes a double polity: the first, consisting of fully enfranchised, politically equal citizens, rules over the second, consisting of the disenfranchised. As the post-Apartheid South African Constitutional Court articulated ‘[t]he vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.’ Denying prisoners their right-to-vote amounts to partial exclusion from their political communities, on either a temporary or permanent basis, and they are effectively unable to join an alternative community.
Disenfranchisement harms not only individuals, but also marginalized groups which are over-represented amongst the disenfranchised; it may exacerbate pre-possessed feelings of alienation and distrust of institutions among convicts who belong to such groups. Disenfranchisement may also skew political processes by distorting group representation (as it arguably did in a few election campaigns in the United States, most notably the 2000 Bush v. Gore Florida fiasco), and by shutting out convicts, a group most adversely affected by society’s most coercive power. Incarcerated convicts are a particularly unpopular ‘discrete and insular’ minority for whom voting is pertinent: prisoners are no politician’s constituents, and are unlikely to have other groups vouch for them, while the interests of Prison authorities will often clash.
The ins and the outs
Finally, disenfranchisement seems like a paradigmatic case of the ‘ins’ (parliamentary majorities) excluding the ‘outs’ (convicts) from the political game. The Canadian Supreme Court held that ‘it is precisely when legislative choices threaten to undermine the foundations of the participatory democracy…that courts must be vigilant’.
Defending the rights of convicts is hardly a popular task. Yet, defending the right-to-vote of convicts entails defending democratic processes that label individuals as convicts by proscribing their acts and permit States to inflict punishments. Convicts’ disenfranchisement is a hurdle on the path towards the democratic project’s successful completion. It can and should be removed.
Reuven (Ruvi) Ziegler is a DPhil (doctoral) student in human rights law, Lincoln College, Oxford. His full-length paper on this topic, Legal outlier, again? U.S. felon suffrage: comparative and international human rights perspectives, is available here.
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Stephen – no of course not. The right of access to a court and the established appeal process exists to ensure that the only people convicted (ie made prisoner) are those who are actually guilty. You can view this in terms of rights, but not necessarily, it could equally be viewed as simply part of the system to ensure that the state makes the right decision on behalf of its citizens.
As to the “right of all rights,” this is impressive rhetoric, but not much more. The right to life is rather more the right of all rights, and thankfully we no longer deprive prisoners of that. As Edward has set out at length above, the decision to deprive prisoners of the vote is logical, principled and not arbitrary. Nor, save for the very few whole life prisoners, is it for all time; only till the prisoner’s debt to society is repaid.
Thank you both for your replies, which are made much more persuasively than before. The debate is now quite focussed on the single issue of the conflict between the (un-inclusive) Parliamentary vote, and the Human Rights argument.
First, to address the point about the arbitrariness in the ‘two thieves’ example, I don’t see how the car argument helps you, in a sense because I don’t see how, without more, the English courts would apply a different punishment for the same acts. The circumstances in which it is most likely to occur, in my mind, are those of drug-related crime. I know that if a ship is used for smuggling/drugs purposes, the ship can be confiscated, and that rule applies in many jurisdictions and applies regardless of the degree of the owner’s or even the master’s culpability. I believe that a similar rule applies to the car if used in drug-related crime in England, although I am prepared to be corrected by a criminal lawyer if I am wrong. Assuming, for the sake of argument that it does, then there might be circumstances in which there is a legitimate reason – confiscating the means of committing crime – for applying different punishments to different parties involved in the same criminal enterprise. Or, to take a slightly different example, drug supply on foot or in a vehicle. I don’t see a case in which the English courts would apply as arbitrary an example as you suggest. Where it would, there would probably be a reason for it. Is loss of the right to vote something arbitrary? No, because the sentencing guidelines are relatively clear, and it is open to an individual to choose when to commit their criminal act (more on that below).
The second group of points go towards the arguments that you were both making. Again, it is difficult to condense these arguments into a blog post.
Of course, it was quite wrong that women were denied the vote. However, if women are included, given that women make up just over half of the population in a natural sample, and have a fractionally longer life expectancy, it is easy to say that removing women from the franchise did make the system less democratic. That applies because women form such a large group that it is in fact male voters over 21 which formed a minority at the end of the Great War. When the franchise was extended, especially after the loss of life in the trenches, and again in the Second War, it is probable that the statistical distortion caused by excluding women (once voting ages were harmonised, which took a few years) was even greater than half.
However, it is difficult to make the same arguments about minority groups. You don’t even need to say Muslims as a hypothetical example; given our early modern history, we might refer to the actual restrictions there were on Catholics (pre 1829) or Jews (pre 1858) sitting in Parliament (a similar enough restriction to voting rights to make a useful comparison – both resulting from positive Acts of Parliament). In each case, the Catholic and Jewish communities living in Britain (outside Ireland) were minorities – significant minorities, but not existing in such numbers to make the same point about the system being undemocratic as can be made about excluding women from the franchise. Of course, it goes without saying that those restrictions on membership of Parliament were morally repugnant, in the same way as apartheid in South Africa was. However, it is difficult, in fact impossible to say that they were ‘undemocratic’. Especially since, at first, the exclusion of Catholics from public life had generally been, in Stuart England, popular moves, which were considered logically necessary (how can a Catholic take an oath of allegiance to the Head of the Church of England? – It’s the same well-known problem that lead to Sir Thomas More’s execution). However, given that they were popular moves, it is very difficult to say that they were ‘undemocratic’, for the following reason:
It goes without saying that there is nothing inherent in a democracy that says that the individual people will be reasonable, or make ‘moral’ or ‘good’ decisions (in a blog post on Halsbury’s Law Exchange, I posted a picture of John Martin’s ‘Satan in Counsel’ from the illustrated edition of Paradise Lost to make a similar point – in the engraving, the devil appears to supervise a functioning democracy! One could not say that the assembly of demons would make moral decisions, but they could reach their decisions democratically). The danger about using the phrase ‘improving the quality of democracy’ when at the same time overruling the decisions of a democracy is that you change the meaning of the phrase; you end up with the result that a decision is only democratic for just as long as you agree with it, and it is undemocratic when you don’t agree with it. Once you reserve the right to overturn “undemocratic”, or more accurately ‘democratic but immoral’ decisions, to yourself, because you know better (even though you do), you have a new system of government. It is a system of government by the ‘best’. It’s been known throughout history as an ‘aristocracy’ – not, as people now think in this country ‘rule by hereditary privilege’, but ‘rule by the best’. The question that then arises is ‘who is right?’ Who is able to make moral decisions about the way we make our laws? This is a huge branch of jurisprudence, which it would be impossible to summarise sensibly in even a PhD – the limited point I am trying to make in this short post is that, although it has become a commonly used shorthand in human rights law, it is in fact impossible to say that a popular but morally repugnant decision is ‘undemocratic’. If you are to maintain the trust of the demos in the rule of law, you have to be honest with them; you can say this – ‘we can’t do what you want because it’s morally wrong, and you should know better’ – and make a sound point. You can even say ‘we are going to do the opposite of what you want because it is in your best interest to ignore you’, and be morally in the right (but then you don’t have a pure democracy, but a mixed system of government [which may be a good thing, cf. Polybius, Book 6]). You can absolutely not, however, say what the European Court of Human Rights in Hirst No 2 said, which was this ‘what you have decided as a group, and what you want as a group cannot be democratic, however popular it is’, because it is, in fact, democratic, however evil it might be. That is illustrated by the specific historical examples above; the decisions were evil; they were, however, democratic, until the demos decided to change its mind and repeal the restrictions.
The question, therefore, of who knows best (the people, i.e. a functioning majority in a parliamentary system, or the self-appointed experts (people who chose to be human rights lawyers, appointed by a private system where the public in each member state has no say on the appointments) is probably best reserved for another post, and I won’t attempt to summarise any further arguments on it here, save for this: it is popular in this country, and popular for constitutional lawyers to believe, that a democracy is the system in which a group of people will make the most ‘reasonable’ decisions. If you disagree, it is the subject of another post, and I will be happy to take part in that discussion.
To return to the restrictions on minorities, there is a clear difference between the examples of minorities (or in the case of women, a majority) that you specify, and prisoners. The difference in this; in none of the cases you mention is there any element of moral choice which attaches to membership of the group. One is a member of a particular religion because of deep-set convictions. One cannot help one’s birth as a member of a particular ethnic group. One cannot choose one’s sexuality, or one should be free to do so (and these are protected by other Convention rights). For those reasons, it is not quite comparing like with like, to compare membership of one of the minority groups you list, as being criminalised. (Very regrettably, English law’s treatment of homosexuality did not, historically, reflect this, because it was included in the list of criminal offences – I accept, therefore, that that example does go against the argument I am making, but I will address what I think is your strongest argument to apply that to present circumstances below). What differentiates a criminalised act is the element of moral choice on behalf of the wrong-doer in choosing to commit it.
In fact, the mental element of any offence (regardless of whether a mens rea has to be actually proved in court) is the key part to explain why a particular act is made criminal. If there were genuinely no choice involved, there would be no reason to have a system of punishments in criminal law at all. The reason we do, is because there is a choice. Many people do not subscribe to the argument that people have ‘automatic’ responses to situations; the ‘I perceive relative poverty, therefore I must steal’ argument. Most people, I suspect, have more respect for the autonomy of the individual, and so do perceive an element of choice in the matter. (This differentiates the ordinary criminal law, from the desperate cry, e.g. for ‘bread peace and land’ of the Russians in 1917, where they were genuinely starving, where there was a collapse in ordinary law and order. That led to a change in government, and is not an example which can be applied to ordinary criminal behaviour in contemporary England).
A further reason applies particularly and positively to prisoners. Voting rights go directly to an ability to influence the criminal law. It seems to many to be an odd situation that someone can be in charge of their own punishment. That argument is, despite the taint it has received from being published in the tabloid press, a very strong one which should not be summarily discarded by human rights lawyers.
Additionally, it is essential that people feel that there is a sufficient punishment that attaches to criminal behaviour. It is easy to forget, in England, just what a delicate thing the rule of law is. The reason we have law at all, is in fact closely related to the point of having a sufficient punishment. If you take a look at very early societies, and look at how they form, you can see the destructive force of people taking the ‘punishment’ element of the criminal law into their own hands. It is a desire to moderate this destructive force which led, in a great number of examples, to the formation of governments to prevent ‘revenge’. One doesn’t need to go as far back as the Illiad to look for honour killings in revenge, or even Njal’s Saga for a situation where the new moderate, Christian laws were not harsh enough to gain satisfy the desire for harsh punishments, because one can always look for more recent examples, where the law does not criminalise particular behaviour (a contemporary, morally repugnant example in contemporary England is that of honour killings – the community does not provide a punishment, so the families provide it themselves). It is a neglected part of the study of criminal law, in England, because there is such a respect for the rule of law that private revenge attacks are a rare occurrence. However, removing the vote is a particularly symbolic way of showing that someone is being ‘punished’, and given the democratic support for it, its removal will not improve the standing of the rule of law in this country.
What, then, of a situation where the law criminalises behaviour which should not, morally, attract sanction, such as the example of the homosexuality laws in England? I suggest, for the sake of argument, that the best safeguard of human rights has historically been democracy; it was democratic choice, albeit slow, to remove the restrictions on Catholics and Jews and decriminalise homosexual behaviour. Historically, democracies have been the better guardians of liberty than aristocracies, which is what the ECtHR is in danger of appointing itself to be. Even in Hirst No 2, the dissenting judges pointed this out. They suggested that occasions where the court should intervene should be extreme ones, and it is hard not to agree with them.
Just to be clear, we all now agree that homosexuallity should not ever have been a criminal offence, and it is a shameful aspect of our history that it was. Oscar Wilde should not have had to serve two years for hard labour – and it was monstrous of the judge who sentenced him to say that it was the “worst case he had ever tried” – presumably having tried murder and rape cases for a start. Alan Turing’s fate sickens all of us nowadays. So it may well be that there are a certain categories of criminal offence in the present day that future generations will find equally wrong. People in the past would have been aghast that a Master of Fox hounds could potentially be a criminal for doing his once exulted job. Or they might think we didn’t imprison enough – eg people in the future may retrospectively deem all meat eating human beings as criminals, if the more extreme vegetarian arguments one day become the received view. But we cannot fail to carry out appropriate punishments on criminal offenders, and maintain sensible custodial policies, on the off-chance that future generations with a wholly different view of morality might decide that some of the offences never should have existed in the first place.
Finally, if we are to abrogate democracy in favour of an expert group who has special knowledge and understanding that the general population, represented by Parliament, does not, then why Human Rights lawyers? One might recall that Latin American military dictators in years past (or North Korean leaders in the present day) used to claim that they, as trained and experienced soldiers, were able to understand security and threats to the country in a way that “ordinary” people could not. They therefore justified their undemocratic grip on power. Further back in time, religious leaders often justified either a hold on power or a disproportionate influence (and we still have Bishops in the House of Lords ex officio) because of their own particular knowledge – or access to a higher power – that a modern audience would find risible. Cynics might describe the encroaching power of the ECHR as “government of the people by the judges for the lawyers”. This is why in this country we have normally decided that the best way of resolving these competing claims for government is by a popular election. It is imperfect, as historic decisions we have already discussed such as criminalising homosexuality illustrate, but one might still maintain that Churchill was right in saying that democracy was the worst form of government except for all the others. Where we act undemocratically, we should be very cautious before doing so.
You make a very persuasive case for democracy. I think you are right, democracy should trump and these matters should not be left to the “divine right of kings” (if you don’t mind me paraphrasing you).
To be fair to the ECtHR, what it objected to was the arbitrariness of the ban on prisoner votes. It did not say the ban was wrong, and indeed, in Frodl it gave a green light to more draconian measures than the UK wishes for itself.
Prior to the case going to Strasbourg, the UK changed the law to give remand prisoners the vote. The UK anticipated the bar on un-convicted prisoners would fall foul of the Court and pre-empted the latter’s conclusion. So at the time the matter went to Strasbourg for the first time there were several anomalies in UK law relating to votes for prisoners which were ironed out before the Court’s judgement.
Apropos arbitrariness, I suggest if the UK wants to maintain a restriction on prisoner voting (and you make a very case that it should be permitted to) then I suggest the ban should be restricted to prisoners sentenced to 10 or more years. I suggest 10 years because prisoners can apply for parole halfway through a sentence and hence may only serve half of a service handed down. The 5 year minimum time served coincides with the electorate cycle thus ensuring that every prisoner sentenced for more than 10 years will be unable to vote in at least one election. Under current circumstances, someone sentenced to 7 years (say) may, or may not, suffer the additional penalty of disenfranchisement, depending on whether their minimum time served (ie 3.5 years) straddles a general election. A ten year sentence as the threshold for the ban eliminates these anomalies and the arbitrariness of the punishment.
Dear Edward, you may find Professor Waldron’s testimony last year of particular interest re the special characteristics of the right to vote: http://www.parliament.uk/documents/joint-committees/human-rights/HumanRightsJudgments/Transcript150311.pdf (see especially pp 45-48).
Further, re the Westminster/ECtHR arm-wrestling (which I was not discussing in my note), there’s an interesting discussion today over @ http://ukconstitutionallaw.org/2012/06/03/colm-ocinneide-prisoners-votes-again-and-the-constitutional-illegitimacy-of-the-echr/
Yes, the concept of voting as the “right of all rights” which Professor Waldron brings up is very interesting.
If it is OK to deprive prisoners of one “right of all rights” (the right to vote) is it OK to remove that other “right of all rights” (the right of access to the Courts, including their right of appeal against conviction) during their imprisonment?
In response to another point above, namely “Re the thieves’ example, the point was to suggest that if we accept that the same crime under the same circumstances and with the same culpability committed by two offenders should entail the same punishment, then it is easy to see why disenfranchisement is an additional punishment”, again there is unfortunately flawed logic – or, rather, no logic.
The thief without the right to vote can only not have that right for one or more of three reasons: (i) because he or she is a foreign citizen, (ii) because he or she is mentally ill or (iii) because he or she is not of voting age. Any other adult in this country would have the right to vote.
If she is a foreigner then she will potentially face deportation, which the British citizen would not – is that an unfair “extra punishment”? Or just a natural consequence of the different – and entirely justifiable – legal status of foreign nationals and British citizens (unless you want to do away with citizenship altogether and let the entire world travel to Britian if it would wish, but if so please leave that argument for another day).
If she is mentally ill, she will be found not fit to stand trial and will be sent to a secure hospital rather than jail, so again will be treated differently from the vote-losing thief, but again for entirely justifiable reasons.
If she is too young to vote, she will then be in the same position as the other thief when she attains the age of majority – exactly as with all the rest of the citizens of this country.
In other words, your argument is entirely without foundation.
“If she is mentally ill, she will be found not fit to stand trial and will be sent to a secure hospital rather than jail, so again will be treated differently from the vote-losing thief, but again for entirely justifiable reasons”.
I wish, but I am afraid the above statement is not consistent with the actuality. Our prisons contain many mentally ill inmates who observers say do not receive appropriate medical help and should not have sent to prison (unless for assessment, perhaps). Assuming mentally ill people are permitted to vote then this subset of inmates, that is those inmates who should be receiving medical treatment, not punishment, are being wrongly deprived of their entitlement to vote.
Unfortunately, the criminal justice system does not distinguish very well between the bad, the mad, and the sad. Perhaps it chooses not to for resource reasons. Whatever the reasons, the prisons contain a mixture of bad people, sad people and mad people. Should sad and mad people be barred from voting, do you think?
In response to the last two posts, I am afraid there is all the difference in the world between Parliament disenfranchising Jews or whoever on the one hand, and prisoners on the other, and it is frankly not on to fail to see the difference.
Someone’s faith, or their ethnic identity, or their height or hair colour come to that (as an irrelevant aside, short men are the most discriminated against group in terms of representation on FTSE 500 boards, but that’s for another day) is a harmless and irrelevant political characteristic. We have moved centuries beyond stigmatising religions in this country (other countries have not sadly, as a recent post elsewhere on this blog discusses). It is frankly offensive to suggest that faith or ethnicity or gender is of a piece with being a criminal.
Being a criminal does not make you a member of a ‘minority’ in any meaningful sense. People are not criminals because of accident of birth, and there is all the difference in the world between choosing one’s faith and choosing to commit a crime. If it were otherwise, then all the other protections we afford minorities would have to apply to serving prisoners, meaning employers could not discriminate between serving mass murderers and other job candidates!!
Prisoners have the right to vote like everyone else – **before they become prisoners**. By choosing to commit a crime, they incur punishment, and lose the right to have a say in the rules which govern society. When they have served their time, the debt to society is repaid and they may **once again have the vote.** So they aren’t discriminated against at all in the sense of arbitrarily being denied the right to vote. They – that is to say every single competent adult citizen – have the right to vote, as long as they (all of us) do not commit a crime so bad that it warrants imprisonment, which frankly is not a light matter.
It is quite logical to say that those who can’t be bothered abiding by the most fundamental rules of society (the criminal law) should not have a say in making those rules, until they have paid off the debt to society imposed by their breach.
You make an excellent point and I stand corrected. You are absolutely correct to distinguish between what a person is (their race, religion, sexual orientation, political belief, etc), and their actions (eg commission of a crime). I fully accept this point and concede this point to Edward and yourself.
Notwithstanding this, I am not sure that being sentenced to prison following commission of a crime is a sufficient reason to bar an offender from voting. What about those imprisoned for non-payment of a fine? Even when the underlying crime was TV Licence dodging? Hardly heinous is it, but people do get imprisoned for these reasons.
Also, it is not always possible to separate an offender’s criminal actions from the offender’s social class, status, grouping, ethnicity, etc. Consider homosexuality, in the days when it was illegal. It was presumably not illegal to be a homosexual provided one did not practice it (ie commit an illegal act). So a homosexual on conviction may have been imprisoned for committing an illegal homosexual act and would therefore lose their entitlement to vote. It is very difficult to say, in a case like this, that the offender is being punished solely for the action and not for their sexual orientation. Were they not homosexual then they would not have committed an homosexual act.
I expect criminologists and sociologists could tell us with great reliability that the majority of convicted prisoners belong to a specific social or economic class and are over represented in the prison population. I know this is true for people who passed through the care system as children – they are massively over represented in the prison population. So yes, they are properly punished for their actions but is there not a significant element of indirect discrimination at play here? Are they not also being punished because they belong to a social group or economic class, just as in the example I set out in the preceding paragraph?
But why should such people, at least for the duration of their imprisonment, be barred from a political process that could address the structural problems that may well have played a very significant role in their offending behaviour?
This post shows great, persuasive, rhetoric, but a dismissive approach to history and some strained logic.
1) First, your starting point – criticising Victorian justice – shows little familiarity with justice in Victorian Britain. Of course, it’s a very popular line to take. It sounds very dramatic – and underlines what progress we made during the twentieth century. Yet the idea that Victorian prisoners lost “all their other rights” isn’t quite wrong. You wrote:
“a Victorian era perception of “civic death” and of convicts as “slaves of the State” whose deprivation of liberty entails revocation of all (other) rights. Convicts are instead increasingly perceived as rights-bearers who retain after their conviction all the rights “which are not taken away either expressly or by necessary implication”.
This is quite wrong, as a matter of historical fact. Were all prisoners killed? Obviously not; we’re discussing the rights of prisoners, not of corpses. So their ‘Article 2’ rights were protected. Were they tortured? No; seems like their Article 3 rights were protected too. Were they subject to slave labour? No; seems like their Article 4 rights were quite protected too (some hard labour might well have passed within Art 4(2), but equally, some would have done). Was their property subject to arbitrary confiscation? Was their right to be married removed? Were they forcibly converted to other religions? No, No, No. One could go on through the rest of the Convention, and the answers would generally be ‘No’. Actually, their rights were quite well protected, if viewed under the categories of the ECHR. Actually, the approach was much more like your ECHR compliant approach, it’s just that their voting rights were taken away “away either expressly or by necessary implication”.
Perhaps you meant that Victorian prisons were not very sanitary, compared to modern ones. Yes, prisons were more basic than they are now. Yes, there were high rates of disease. But the same could be said of conditions in urban housing (e.g. the Piggeries, Notting Hill, as a well known example), so it’s not a fair comparison to say that Victorian prisons were places where all the human rights of prisoners were lost. In fact, if you took a historical approach to your writing, you would know that Victorian prisons were much more advanced and comfortable than Georgian prisons, which were often privately run in the overcrowded ‘facilities’ of medieval buildings, very often local castles or town gatehouses where incarceration actually, more literally, meant torture. That was a consequence of the fact that imprisonment was not used often for punishments after trial – community punishments, transportation and heavy fines were more normal. The Victorian period coincided with a strong movement for prison reform, where prison was a comparatively humane advance on what the previous generations had known. Yes, some prisons had hard labour, but that was not uniformly popular during Victorian England, so that the treadmill remained a late Georgian and early Victorian punishment, reappearing after the 1860s before dying out towards the end of the century. Hulks, a relic of transportation, were not used after the late 1850s. Prison conditions improved dramatically during Victoria’s reign, with the building of model prisons to replace earlier ramshackle structures. So your starting point makes for a very strong rhetorical point, showing a contrast between a barbaric past (everything Victorian is bad because it’s old!) and a benevolent, advanced, present; it’s just not a view that is compatible with the historical reality – not ‘all other rights’ were lost. Voting was included in the few rights lost by conscious choice.
2) Your next point was this:
“However, if law-abidance becomes a voting qualification, then contractarians may seem arbitrary when they support selective disenfranchisement of law breakers.”
The ECHR has said in Hirst that the disqualification was arbitrary. From the domestic point of view, there is a strong argument that it was not arbitrary at all. To receive a custodial sentence, either the sentence has to be for a serious crime after a Crown Court trial, or after the exercise of a discretion by a Magistrate in a county court. On the one hand, it is a response of society to the commission of a serious crime. On the other, a judge has exercised a discretion that prison is in the public interest, and in that of the parties. Both are subject to the help provided in the Sentencing Guidelines. It would be an arbitrary response if ALL lawbreaking resulted in a custodial sentence. It would be arbitrary if random members of the public were suddenly denied their voting rights. This is not the case – voting rights are lost by people who commit serious crimes where their custodial sentence overlaps the next election – it is difficult, on reflection to say that this is really an arbitrary category. To adopt the ECtHR’s classification of the sentencing policy in the UK as ‘arbitrary’ shows a disregard for the huge amount of learning in the relevant law of sentencing. It also hints that judges don’t take into account pleas in mitigation, or aggravating or mitigating factors, and, in fact, don’t do their jobs as judges properly. I don’t imagine you’d really go that far.
3) Your next sentence comes out strongly against our whole constitution! You write:
“Moreover, the legitimacy of punishments, arguably, depends on the legitimacy of political processes that produce and enforce criminal law which, in turn, depends on citizens’ ability to participate equally in choosing representatives who decide which behavior to outlaw, which individuals to prosecute, and which punishments to impose.”
Do you not believe in our democracy? Do you really think our system of lawmaking is arbitrary and undemocratic. Is our political process so hopelessly illegitimate that the criminal law, inherited in an unbroken tradition since the Norman Conquest, is so far removed from society’s norms that it’s not fit for purpose? That criminals aren’t really wrongdoers because our laws are so perverse? That’s probably a subject for another post, but it’s quite a strong statement to say that you don’t have confidence in our law or our ancient Parliamentary tradition. It also doesn’t really address the jurisprudential problem behind most law-breaking: most people don’t break laws because they feel it is wrong for themselves to do so, most do so as a result of a utilitarian calculation that it is in their own benefit to do so: to pick an obvious example: Robin Hood. A more common example is the justification of poverty for theft – it’s in the thief’s interest to steal, there is a rational reason behind it. However, there has to be a criminal law to preserve society from anarchy – you can’t abolish or ignore the application of laws where it is possible for a criminal to compose a (perverse) justification.
4) Your next point is “voting eligibility is based on political equality, rather than on particular moral virtues.”
Actually, voting eligibility is also based on maturity – a criterion compatible with the ECHR – a key part of maturity is demonstrated by an ability to follow rules. This links with your later, rather disingenuous point, which was this:
As the post-Apartheid South African Constitutional Court articulated ’[t]he vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.’
To compare the deprivation of prisoner voting rights compares to the racist policy in South African voting, is a little insulting to that process. Denying people the vote based on the colour of their skin is a terrible abuse of their rights. Of course they ‘counted’, just as their votes had to be. However, to compare prison to apartheid is to compare two very un-like situations. Quite simply, the people who become prisoners DO ‘count’ – before they chose to commit their offence. The imposition of a custodial sentence is not an arbitrary one that can be compared meaningfully to apartheid.
5) Having stated, without particularising why, that the ‘social contract’ arguments are internally flawed, you then state:
“Concern is also raised that convicts possess negative character traits and that the body politic should be protected from corruption, immorality, and untrustworthy behaviour. However, in the twenty-first century, universal suffrage suggests that voters are a heterogeneous lot, and possess diverse personal traits; voting eligibility is based on political equality, rather than on particular moral virtues.”
This is very troubling – are you suggesting that because there are morally flawed people in the general population, the character flaws of prisoners can be ignored? Again – there are permissible restrictions on voting, and one where dishonesty and an inability to follow society’s norms, as expressed by laws made properly and constitutionally by one of the world’s oldest functioning democracies has to be a reasonable restriction. The fact that other people, who have not yet committed a criminal act, may do so in the future, does not seem like a sensible argument to restore the vote to rule-breakers.
6) Your next point that the policy might ‘exacerbate feelings of marginalization’ is quite right. It’s meant to, as part of the punishment. Being imprisoned might itself ‘exacerbate feelings of marginalization’. Being marginalized is, well, what prison is about isn’t it. After all, people are imprisoned to be out of the community, not part of it.
7) Your next point can also be subjected to a reductio ad absurdum. You wrote: ‘Penal systems which display disrespect, indignity or degradation are objectionable, because these are intrinsically inappropriate ways for societies to treat their members.’
Then you compared taking voting rights away from prisoners to torture and mutilation. Being imprisoned is a sign that society has no respect for the convicted. It is supposed to be undignified, and a little degrading. Prison is not supposed to be a badge of honour. The comparison to torture is too extreme an example to make a reasonable point.
8) Your point that ‘Disenfranchisement may also skew political processes by distorting group representation’ might have application in America, but I doubt it seriously does in England.
So, I was impressed by the way you made your argument. It was very persuasive, but it is possible to challenge some of the steps in your reasoning.
Many thanks for taking the time to address my paper, and to do so in such a respectful manner. It is much appreciated. The word-limit constraints of a blog entry have only permitted a cursory reference to a number of points which require far greater elaboration, hence the reference to the full-length article. Regarding your First point, the ‘Victorian’ reference alludes to the Forfeiture Act 1870 which is the original legislative basis for current disenfranchisement practices in Britain. Re the point regarding ‘civil death’, I submit, following Liora Lazarus (discussed at length in the full paper) that there has been a change in perception and that the significance of ‘residual liberty’ lies in the retention of such rights, e.g. freedom of expression cannot be underestimated. The fact that on your account prisoners were clothed and fed, or that they were not tortured, does not necessary indicate that they had a right to such treatment; rather, it was given to them at the discretion of the penal authorities. I maintain that there is a conceptual difference between being treated properly as a benevolent subject, and being treated properly as a rights-bearer. As to your account of Victorian v Georgian prison condition, I am no historian and perhaps your account is indeed accurate. My modest agenda is to point to disenfranchisement as a relic of archaic perception of community membership and rights-bearing. Re your Second point, the fact that the offence is deemed serious enough to mandate incarceration cannot (according to my reading of proportionality and individuality) suffice for imposing disenfranchisement as an additional punishment; assume there are two thieves stealing television sets from a shop on Oxford street: one is a citizen, and hence otherwise an eligible voter; the other is not. Both are sentenced to three years in prison, but only the citizen receives an (automatic) additional penalty of disenfranchisement. Your Third point portrays democratic legitimacy as a binary affair whereas I believe as my closing sentences indicates that there are gradations: for instance, this country still has legislation passed at a time when women had no right to vote; I am arguing that, conceptually, Britain will be a better, more representative more accountable democracy were it to enfranchise its prisoners. Surely, you agree that regimes where the people are subject to coercive power but have no control over decision-making as to which acts should be proscribed are morally objectionable even if other aspects of the rule of law (e.g. certainly, prospective legislation etc) are adhered to. Your Fourth point is addressed directly in page 207 of the paper. I am afraid you are reading more into the use of ‘post-Apartheid’ than was meant by it: the reference was meant to suggest, firstly, that I am not quoting a judgment from the Apartheid era, as these judgments would be justifiably suspect; and secondly, that precisely because of its history, S.A. is quite conscious of the implications of disenfranchisement. Your Fifth point is addressed in the paper at pp 206-7. Re your sSxth point: that, in my view, is the crux of the matter, and I am glad you accept that disenfranchisement marginalises and excludes: I assert that such considerations should not guide our choice of means of punishment, that we should change the way we view prisons, that we should use incarceration more sparingly etc; this is no doubt a (more general) argument to be had. Re your Seventh point: it is precisely because of the marginalisation and social exclusion that I respectfully disagree; the full paper addresses this at length, e.g. by reference to the U.S. Supreme Court in Trop v Dulles (where the court considered denationalisation to be a ‘cruel and unusual punishment’). Re your Eighth point: sure; fortunately, the British penal system uses incarceration far more sparingly than the U.S.. This argument, like the post as a whole, points to an additional folly of disenfranchisement. Thanks again for your comments.
Thank you for taking the time to respond to this. I appreciate fully the limits of the blog format. The history of this is in fact far more lengthy. It’s possible to draw direct comparisons back to Roman law, and, given that the ban has appeared in democracies and mixed constitutions across Europe until recently, there are strong arguments that there is a natural law element to it, which is a counter to the ECtHR’s argument in Hirst No 2 that because there was a significant group (note the minority judgments – not a majority) against the ban, then that must be the ‘natural’ state of the law. I think history is important to understanding the modern law, but I know that many lawyers and commentators only focus on the present.
As regards your next point – I don’t see how your example works at all. The second eligible voter wouldn’t have had the vote to begin with, and in the ordinary course of things an extradition order would have been sought against him. It’s not comparing like with like. It would have been better for your argument to compare two thefts, one six months after the other, where one missed the election and one did not. You could then have said; same citizen status; same crime; different punishment. That is, I think, the strongest example of the extra punishment being arbitrary. The counter is to raise the deterrent side of punishment, which cannot be wholly neglected in favour of the wholly proper rehabilitation side of punishment. The deterrent argument would say simply, if you don’t want to miss the election, don’t break the law before an election. Difficult to say, given the element of conscious choice, that that is arbitrary.
Your counter to the third point is, in this specific case wrong. It would have been correct before the recent vote. However, the 2012 vote confirmed the law, with a majority of the country represented, and a massive majority within that. It’s difficult to say that, even if all disenfranchised people in the country were included – including prisoners, children, aliens etc., that the vote would have gone the other way. It’s difficult to condense the jurisprudential point that individual rule-breakers often feel that the law doesn’t/shouldn’t apply to them, into a blog post. But the conclusion, which I hope we all as lawyers share, is that rules made by our parliamentary process are democratically made, and individuals should not be free to challenge or flout these rules outside that process. I don’t really follow the point that prisoners are unable to influence the political process. They were able, as free citizens, before they chose to commit their criminal act. They will become so when they are released.
I agree that the sixth point is key – but I think that Parliament has made its intentions clear by the 2012 vote. Doesn’t democracy matter? There is doubtless a debate to be had about the proper role in decision making of experts and those involved with the criminal law and prisoner rehabilitation, and the wider public. At the moment, the ‘tabloid’ view has prevailed in Parliament. In what circumstances, then, would you say that democracy should not be permitted to function?
I have skim-read the other points in your paper. Thank you for drawing my attention to those passages – I intent to further response to address those separately.
Above, you question Reuven’s commitment to democracy by posing the following question to him:
“Do you not believe in our democracy? Do you really think our system of lawmaking is arbitrary and undemocratic”
Yet it is Reuven who is proposing that suffrage be extended (to include convicted prisoners), and it is you who are arguing for suffrage to be restricted !!!
With respect, methinks your questioning of Reuven’s commitment to democracy is a bit rich since it is coming from someone like yourself who wishes to curtail voting rights solely to people of whom you approve.
Thank you for your reasoned reply. I was attempting, however imprefectly, to point out that our laws generally, express the will of the people in this country. In particular, Parliament has recently voted to continue the prisoner voting ban. Therefore, it is not just my nasty choice to disenfranchise people I disapprove of, but rather the choice of a clear majority in this country, to do so. I happen to believe in democracy, and think it is liberal and right to do so. I’d have thought, especially given that this discussion is about preserving the functioning of democracy, that readers of this blog might agree with that too. Perhaps you don’t believe that the right of democracies to implement the people’s will is important; perhaps you only think that the form of voting is important, and you don’t expect democratic wishes to be fulfilled.
Reuven’s comment explained that people were free to disobey law if they didn’t feel that the law implemented the will of the people. I don’t think that can be said about English law. It is a direct challenge to this constitution, and an ad hominem comments don’t reduce the seriousness of his suggestion.
I am sorry if you felt my comments were ad hominem. It was not intended. I was merely critiquing the logical contradiction of the “democratic mandate” shibboleth for restricting suffrage.
Would you use a similar argument, were Parliament to decree it, to exclude Muslims, say, from voting in UK elections? Or women? Or homosexuals? Or gypsies, etc.? I am sure you get my drift.
As you know, women only acquired the vote in modern times. Homosexuality was illegal until the 1960s. Someone imprisoned for that offence would have lost their right to vote for the duration of their sentence. We now rightly deplore such injustices.
Logically, I see no difference between these cases and the prisoner voting case. The oppression of a minority is not made acceptable just because the majority will it.
In any case, how would granting the vote to convicted prisoners harm or corrupt democracy? As far as I can see. there is no downside but there is potential upside (modernisation of criminal justice system etc)
Dear Edward C, Thanks for your response. I am certainly not suggesting we should not be aware of history but, rather, than in the context of suffrage the premises for allocating suffrage at a pre universal suffrage era were fundamentally different and hence ought not to guide our policies today. Re the thieves’ example, the point was to suggest that if we accept that the same crime under the same circumstances and with the same culpability committed by two offenders should entail the same punishment, then it is easy to see why disenfranchisement is an additional punishment; I hope you would accept that if only one offender owns a car, then the fact that only s/he is subject to confiscation of property in addition to incarceration (which both offender suffer) is an additional punishment. Next, rather than legitimation for law-breaking, my argument calls for reflection re legislative majorities: presumably you would agree that if parliament would have voted overwhelmingly to disenfranchise Jews or Muslims, both a fraction of the British population, and parliament’s decision would have later received public backing, it would still be morally objectionable and, indeed, make Britain less democratic. If you take the view that democracy simply requires a functioning representative majority regardless of whether it casts out minorities in a procedurally sound way, then we seem to apply a qualitatively different threshold. Cheers.
this whole prisoner voting argument is a farce.
As we know to our cost, the cohort of convicts will inevitably include some wrongly convicted. On this ground alone convicts should be enfranchised.
As to procedure, in what constituency is a prisoner to vote; that of the prison he/she is in – or that of his/her normal place of residence/registration?
The necessity for MP’s to visit prisons to canvass would be no bad thing apropos prison conditions…
So, as the cohort of convicts will inevitably include some wrongly convicted, so we should release all convicts on that ground alone? Why not abolish all law entirely while you are at it!
An excellent post.
My own experience of teaching in prisons underlined how politically engaged many inmates were. In going through the criminal justice system, many who had previously admitted to being entirely apolitical on the outside realised the importance of politics, whether at a local or national level.
Regrettably, the argument ‘for’ is still rather academic, and I fear it will be some time before sympathy for this cause becomes main-stream.
The ECtHR’s judgement that upholds Italy’s life ban on voting for convicts sentenced to 5 years or more is a travesty. I suspect the ECtHR is caving into UK pressure whilst saving face by not overturning the Hirst judgement.
Our society is deeply flawed. These flaws create the conditions for rational citizens to commit property crime. A hungry, homeless, isolated and jobless citizen facing a choice between freezing or starving to death may well choose life and appropriate property in a way that is outlawed by bourgeois society. This, despite the commission of such an act being entirely rational, is punished by the bourgeois justice system as criminal. I beg to differ. I do not believe it should be criminal and nor do I believe such scenarios are rare and hence trivial.
For me, this is the main reason why I believe convicts should have the vote. They, above most other citizens, will often have the most experience of economic exclusion and the failings of Society. The solution to their problems is not to change themselves. They are not bad or evil people. They are merely rational agents reacting rationally to their adverse circumstances . The solution to their problems, their offending behaviour, and the social forces that have given rise to it, is to change society. That is a political project in which convicts should be encouraged to participate. That is why I believe they should be able to vote, whether in or out of prison.
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