The case for letting prisoners vote – Reuven Ziegler

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.

Civic death

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.