An Analysis of Common Justifications for Prisoner Disenfranchisement

This guest blog by Samantha Morgan-Williams (UCC School of Law PhD researcher) examines recent developments in the UK regarding prisoner disenfranchisement.

The ongoing saga of prisoner disenfranchisement in the UK has recently come to a head with the Committee of Ministers of the Council of Europe closing the supervision of the prisoners’ voting rights cases against the United Kingdom (UK) in December 2018. In adopting final resolution CM/ResDH(2018)467 the Committee has effectively accepted that the limited ‘administrative amendments’ are sufficient to satisfy the ECtHR. In the wake of the New Zealand Supreme Court’s confirmation that disenfranchising prisoners is inconsistent with the Bill of Rights, and amidst the enfranchisement of 1.5million convicted felons in Florida, this post seeks to revisit the political basis for disenfranchising prisoners, appraising determining the core arguments presented for justifying blanket bans on prisoner disenfranchisement.

Justification for Prisoner Disenfranchisement

Proponents of a ban on prisoner voting often justify disenfranchisement under one of the following reasons: the civic death or civic virtue ground; the social contract; or that disenfranchising prisoners achieves sentencing aims.

The Civic Death/ Civic Virtue Argument

The civic virtue and civic death arguments, although predominantly intertwined and spawned from the same ideology, differ on the actual reason or main aim of their use. The civic virtue argument stems from the act of committing of a crime as a member of a democratic process. This strand of this argument asserts that when one violates the laws one participated in creating, that one defaults on the agreement to respect the law and hence forfeits any right to assist further in creating it, in short, one loses their civic virtue. However, in order to say that prisoners lack civic virtue, certain generalisations must be inferred about their character and although it is true that people who break the law seemingly do not respect the law, the justification on this premise for taking away their vote based on a lack of civic virtue appears to create or infer a second punishment. Traditionally in most jurisdictions, sentences for crimes appear in the form of incarceration, thereby invoking the issue that if there has already been a punishment given, then what is the second crime then that prisoners are being punished for by forfeiting their vote? It follows that disenfranchisement is fundamentally an additional punishment and as such requires an additional justification, yet none has ever been supplied as far as this author can gauge. Consequentially this idea of civic death or a second punishment appears jurisprudentially to be morally unjustifiable. Thomas Hammarberg, former Commissioner for Human Rights at the Council of Europe, has articulated his opinion on this matter stating that:

 Prisoners though deprived of physical liberty, have human rights … Measures should be taken to ensure that imprisonment does not undermine rights, which are unconnected to the intention of the punishment.

Thomas Hammarberg

The civic death argument, much like the civic virtue argument, centres on a removal of civic rights or the right to be involved in the shaping of society by virtue of committing a crime. In losing civic virtue, one befalls civic death, a term which conjures forth draconian ideas of having damaged the democratic process and as a result losing all rights. In other words, if you refuse to follow the law, you clearly do not respect it and should lose the ability to partake in its development.

Although this is the most common justification used to justify the continuation of a blanket ban on voting for those imprisoned, it is undoubtedly the weakest, stemming from the fact that those who utilise the argument have yet to explain its rationale. Further, a brief overview of the history of this particular justification serves to undermine its very practice. The claim of civic death suggests that through the act of their crimes, prisoners lose their civic virtue, are no longer worthy of being afforded civic duties and as a result befall ‘civic death.’ It is apparent therefore that the relationship between the individual and the state changes radically when one is found guilty of an offence and incarcerated.

It is clear therefore the connected civic death and civic virtue argument is decidedly weak and standing as it does on feeble and unpersuasive evidence. The term ‘civic virtue’ is used as haphazardly as ‘civic death’ in support of prisoner disenfranchisement, with little evidence that its proponents can even define the essential term of the premise nor explain how it justifies the ban.

The Social Contract

The Social Contract theory has been used to justify the current stance taken in Australasia by the Australian and New Zealand Legislators respectively. In Australia, prisoners serving sentences of more than three years are denied the right to vote, and the Australian Human Rights Commission recognised that this is in breach of the State’s obligations under Article 25 ICCPR. In New Zealand, the position was much more severe, mirroring the UK’s stance with the effect that no person incarcerated after the amendment could register on the electoral roll. The High Court of New Zealand, highlighted the weakness of such arguments in the Arthur William Taylor case:

[T]hose ‘who infringe the laws of society to the extent that they are put into penal institutions should not be entitled to exercise a vote in a general election.’ A principled view to the contrary of Justice, is that a sentence of imprisonment should not deprive a person of civil rights, beyond those inherent in the sentence, namely freedom of movement and association. (Taylor v Attorney General [2015] NZHC 1706 at 25).

Taylor v Attorney General [2015] NZHC 1706 at 25

The use of the Social Contract argument places a great deal of trust and onus onto the effectiveness of a criminal justice system, as in order for the Social Contract theory to stick as a justification, we would need to ensure that all criminals are incarcerated or there would need to be an insured and complete consistency in sentencing process and a clear delineation of such. Pursuant to this, the Social Contract theory gives no guidance as to how we should do this or how we should create this degree of seriousness and minimal threshold. Furthermore, this argument neglects the comparative and complementary question of whether society has upheld its duties to the criminal, as they are also a person given obligations under the Social Contract. In short, we must not forget that the contract is bilateral.

The second strand of the Social Contract argument can perhaps be offered as an indicator of why the punishment manifests itself in such a way. The Social Contract theory asserts that when one violates the laws one participated in creating, the criminal defaults on the agreement to respect the law and hence abdicates any right to assist further in creating it. In short, while the first argument is based on the fact of the law breaking, the latter part of the argument claims that society can deny the vote to citizens based on an inference about their attitude to the law, given their law-breaking. In summary, both the civic death and Social Contract argument appear to follow the rather arbitrary approach that if you refuse to follow the law you clearly do not respect it and should lose the ability to partake in its development.

Achieving Sentencing Aims

A further justification often presented in favour of a continuing ban on prisoner enfranchisement is the premise that the blanket ban serves certain sentencing aims. Such a position is arguably the most untenable, particularly when one considers the vast research evidencing that engaging prisoners in civic duties mitigates ‘othering’ and has a direct consequence lowered rates of recidivism. This position however, found great favour in the UK in their attempts to justify the blanket ban created under the s.3 of the Representation of the People Act, 1983.

During a statement providing evidence before the Joint Committee on the Draft Voting Eligibility (Prisoner) Bill, the Right Honourable Jack Straw MP (former Home Secretary and Justice Secretary) and David Davies MP (former Shadow Home Secretary and Minister for Europe) both advocated this approach:

By committing offences which by themselves or taken with any aggravating circumstances including the offender’s character and previous criminal record require a custodial sentence, such prisoners have forfeited the right to have a say in the way the country is governed for that period.

Joint Committee on the Draft Voting Eligibility (Prisoner) Bill

Consequently, despite the over-generalisation of politicians contrary to this, research proves that maintaining a life as close to normality as possible during incarceration will make re-integration an easier process, aide rehabilitation and diminish recidivism rates upon the prisoner’s release. This point was recognised by Judge Caflisch in Hirst (No. 2) at para. 5 of his concurring judgment where he stated that:

The UK Government further contended that disenfranchisement in the present case was in harmony with the objectives of preventing crime and punishing offenders thereby enhancing civic responsibility (judgment, §50). I doubt that very much. I believe, on the contrary, that participation in the democratic process may serve as a first step toward re-socialisation.

Judge Caflisch in Hirst (No. 2) at para. 5

The supporting claim here is that the loss of the vote sends a clear message to the wrongdoer about the evil of their conduct: are we telling them that because they are a bad person they will not only be incarcerated but also further excluded as they committed a crime and their opinion is no longer valued? The second aim offered under the title of sentencing aims is deterrence. However, there is little evidence to support this stance and therefore this justification fails for two reasons. Firstly, policy makers are assuming that people know about disenfranchisement laws. Evidence suggests however the majority of those incarcerated are more concerned with maintaining their personal and familial relationships and losing their freedom than with their suffrage. Thus, the deterrence value of the deprivation of a right to vote is slim to none. Acknowledging that there are exceptions to each rule, it appears that if a person has chosen to forsake their civil liberties then deprivation of their electoral rights may not provide effective deterrence. On the contrary, greater civic involvement actually contributes to an easier transition into life post-incarceration.

Conclusion

In summary, recent events resulting in the enfranchisement of prisoners have been both welcomed and scorned in equal measure. When considering the interdivisibility of human rights and the apparent ‘worthy’ rights holder which disenfranchising prisoners creates, it is clear that prisoner disenfranchisement is an extremely polarising issue and arguably at odds with a number of legal norms. However, when the justifications for restricting prisoners from exercising their voting rights are examined, it is clear that such justifications – civic death, civic virtue, the social contract and the ambiguous achieving of sentencing aims – cannot withstand scrutiny.