Friday, February 11, 2011

Why not let prisoners vote?

This has been the big issue in the UK where the European Court of Human Rights has ruled that the UK should not ban all prisoners from voting. Further details are here. On the legal front, one way forward if some form of ban were to remain would be to (a) permit voting for some prisoners for some offences [the problem again being with a blanket ban] and/or (b) to change the law permitting judges the discretion to decide whether a particular offender should lose his/her right to vote while in prison.

Many have sided with the government on this issue in wanting to deny the vote to prisoners. I believe this is the wrong policy. Here is why the arguments against don't work:

1. Prisoners have broken the law. Therefore, they should be denied the vote.
The fact that one has broken the law should never entail that one is denied the vote. Many people break the law regularly. Only a minority are ever found out and only a small number of these ever make it to court -- let us not forget that the criminal law is only one small part of the larger body of "law" in any society. Those of us who break civil laws - should our voting rights be denied?  No. So the argument is not really about breaking the law, but breaking the criminal law (at best). Persons should not be denied the vote because they broke the law. The reason (again) is because not all persons who break the law will warrant imprisonment as not all will be caught and not all persons who break the law break criminal law: the importance of criminal law here cannot be understated.

2. Prisoners have performed a crime. Therefore, they should be denied the vote.
This claim is different. Here the argument is that a prisoner has performed a crime (e.g., a criminal law). Should this matter? Well, many of us also break criminal laws. One major example is traffic offences. In every jurisdiction I know of traffic offences are part of the criminal law. Yes, that's right: it is a crime to speed or illegally park. Not all crimes warrant imprisonment -- although, yes, most jurisdictions allow for repeat speeders or persons who speed to great excess to be imprisoned. Now is anyone claiming that persons who have a speeding or parking ticket be denied the right to vote? No. So the claim must be different from the fact a criminal has performed a crime is enough to warrant denying to him (or her) the right to vote.

3. Prisoners have performed a crime warranting imprisonment. Therefore, they should be denied the vote.
A better argument is that denying the vote should be part of a penal sanction. Imprisonment certainly denies freedom of assembly and to some extent freedom of speech. That is clear. Should it also entail a denial of one's political voice while one is in prison? Let's break this argument down further:

Prisoners have violated the "social contract". Therefore, they should be denied the vote.
This does not work. Many of us violate the social contract. We violate it when we get a parking fine. Should we be denied the vote? No.

It might be said that prisoners have "stepped outside" or "left" the social contract. However, if they are not subject to the social contract, then we must recognize that the obligation problem may run both ways. It is not only the case that "we" might suspend full membership to criminals, but their obligation to "us" is similarly suspended. Yet, prisoners do not automatically lose their citizenship or many of their rights in being imprisoned. What makes voting different? So we need a story about why voting in particular should be affected. This story is still lacking.

Prisoners should be punished. Therefore, they should be denied the vote.
I suspect this is the better argument: it is a story about why the denial of the vote should be a part of a penal sanction. Yet, what we still require is a story about why voting. This is because prisoners do not lose all rights of citizenship so we must be clear on why some rights are suspended while others are not. As we have seen, the mere fact of breaking a law or breaking a criminal law or breaking "the social contract" are insufficient to justify the denial of voting rights as stated. We need something more defined.

Ultimately, I think the temptation to better specify why prisoners should be denied the vote is resisted. The overwhelming majority of prisoners will rejoin society. Electoral participation makes for better citizens. The big problem of imprisonment is that prison tends to make for worse citizens, given the problems of high recidivism rates for many crimes. Anything we can do to make for better citizens should be an achievement to aim for. If voting rights might do this, then they should be granted. The consequences may be for more active and responsible citizenship post-imprisonment because prisoners may feel they have a greater stake in the society. Plus, doing this would avoid hefty fines from the European Court. It is also inconceivable that any election might turn on the votes of prisoners. On balance, it seems better to extend the vote than to deny it. This is not to say there is no clear argument against, but only that we do not seem to have heard such an argument from our MPs yet.

In conclusion, this is not to say that perhaps some of the local opposition is simply a reaction to a "foreign" court "telling" the UK "what to do": I suspect resentment at this is stronger than many may think. Nevertheless, I think it is a mistake to deny prisoners the right to vote. In the meantime, while government officials claim the high ground, expect the cost of compensation claims paid out to former and current prisoners to rise...


Paul said...

Does letting prisoners vote reward bad behavior that has somehow impacted society ? Would perpetrators of more serious crimes be allowed to vote ? I think that being able to vote should not be an option for an inmate while he,or she, is incarcerated.

johnfitzgerald said...

Hi Thom, all good points. I am saddened that no argument I've seen against prisoners voting is any more sophisticated than 'they are bad people. I've considered the issues further <a href= ">on my own blog</a>.

The Brooks Blog said...

Many thanks for your kind comments, John -- and for sharing your recent post.

Paul - how does permitting imprisoned UK citizens "reward" bad behaviour anymore than, say, permitting inmates freedom of conscience and religious expression? Imprisonment never entails the full loss of rights (perhaps save capital punishment). Besides, if all studies show voters are more law-abiding citizens and there is often a problem with recidivism rates amongst ex-prisoners, then perhaps permitting the vote may do a world of good.

Of course, it is also worth mentioning that many civil rights heroes have been imprisoned which opens up further issues.