Prisoners’ right to vote
By Simon Hetherington
It has been conceded that the simple rule preventing serving prisoners from voting cannot survive. The immediate responses from both ends of the spectrum have been predictable. Depending on your point of view it is either not before time to do away with ‘civic death’, or an over-liberal concession to the human rights of those who have proved themselves anti-social.
However, the concession has been made, and so the exercise has turned rapidly into one of limitation: which categories of criminal can we legitimately deprive of the vote?
Since the challenge which led to the ECHR ruling was made by a convicted murderer, it might seem odd that the debate has taken this turn. But that categorisation is really what it is all about now, and there is still some confusion as to the basis for addressing it. Is it the sentence or the crime that should attract the removal of the right to vote? At the moment it is a mixture – incarceration, or conviction of an electoral offence which need not be followed by imprisonment, is the determining factor.
As simple imprisonment is no longer an acceptable benchmark for disenfranchisement, the question being considered is one of degree: for example, one option is to restrict the no-voting provision to people sentenced to more than four years. But how is this different? It leads to the position that the change designed to achieve greater liberality and fairness could merely shift the unfairness to a slightly different ground: the length of the term served, rather than the fact of imprisonment.
It comes down to the point that if the sentence is the determining criterion, the discretion of the judge is the crucial lever. And if what is needed is a consistent principle for depriving an offender of the vote, then leaving it to that discretion is not likely to provide it. No matter how appropriate a sentence each judge may give in each case, the element of particularity in that situation would undermine the soundness of that principle.
Perhaps it is time to make the conviction of a specified crime, and not the sentence handed down, the only trigger for removing someone’s right to vote.
Jonathan Cooper OBE says: “The UK is a democratic society premised upon human rights standards. The right to vote goes to the heart of democracy. Therefore limiting the right to vote without compelling and proportionate reasons undermines our notion of democracy. With a prison sentence comes the additional restriction of some fundamental human rights, most notably family life. But those rights are only constrained as a consequence of the loss of liberty. An inmate retains all rights which are not affected by that deprivation of liberty. Being deprived of the right to vote has no rational connection with serving a prison sentence, particularly as denying someone the right to vote has such huge ramifications for the quality of our democracy”
No related posts.
The European Court of Human Rights dealt with this issue in the more recent case of Frodl v Austria.
It held that the categories of prisoners whose vote can legitimately be taken away are fairly limited. Any restriction on voting rights must be proportionate to the end pursued, and “must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage.“
A prisoner’s right to vote could in some cases be taken away, but only in the limited scenario where a prisoner was detained as a result of the abuse of a public position or a threat to undermine the rule of law or democratic foundations. In other words, there needs to be a “direct link between the facts on which a conviction is based and the sanction of disenfranchisement“. In light of Frodl, it seems unlikely that the government will be able to restrict voting rights to those who have committed less serious offences.
So, unless the government wants to inspire another critical European judgment, judges will have to be told that they can only disenfranchise convicted criminals in very limited circumstances, namely when they have abused a public position or something similar.
See my blog post here: http://ukhumanrightsblog.com/2010/11/01/prisoners-to-vote-in-next-general-election-end-of-5-year-wait-since-euro-decision/
Also, John Hirst was convicted of manslaughter, not murder. Frodl was a murderer though.
The general public, I expect, would think the former rules to be clear, reasonable, and proportionate, and would view any change with dismay.
First, it seems strange that a prisoner, who, by the very fact of his imprisonment, has demonstrated an inability to follow the rules imposed by society, should have a right to influence the creation of those rules during the term of his punishment. The idea that he should flies in the face of any notion of a social contract. Voting is, and remains a privilege, and the public perception will be that it will be devalued by this change. The idea was suggested that allowing prisoners the vote would ‘increase the quality of our democracy’. Are prisoners philosophers? Why will their vote lead to better governments? Hardly. That proposition seems to have little foundation.
Secondly, the argument that incarceration isn’t a consistent principle is unsound. A judge has, within prescribed limits established by the sentencing guidelines, and guided by previous cases, a discretion to award an appropriate punishment for each case. Far from creating unfairness, the discretion of a judge allows him to pass an individual punishment to fit an individual defendant’s circumstances. Rather than the harsh inflexibility of a general, immutable rule, a judge’s discretion whether to impose a custodial sentence increases, not lessens, the fairness of his decision, and of the consequential depravation of a defendant’s right to vote. Under no circumstances should it seriously be said that ‘the element of particularity… would undermine the soundness of [a] principle.’ If that were so, no courts would have equitable jurisdictions, and no judges discretion.
It follows that a blanket rule which applied to the crime would not be able to reflect mitigation or aggravating features of any offence. That is hardly an improvement.
Thirdly, it is suggested that there is an element of change in the existing situation. That would be because a prisoner sentenced for three months might miss an election, whereas another sentenced for three years might be out in time. However, the element of fairness is in this – that it is more likely that a long-term detainee will miss an election. Further, if missing a chance to vote is a cause of concern for prisoners (is that seriously suggested?), isn’t it an additional deterrent to his offending. The consequence, however, where it is a real issue for a person contemplating committing an offence is this; if he is concerned about being disenfranchised, he shouldn’t break the law. When his punishment, or rather the custodial part of it, is served, a prisoner is considered by the authorities to be reformed, and is released. Allowing a resumption of his franchise on that release seems instinctively to be an important part of that resumption of trust that society places in him.
Accordingly, the status quo, i.e. preventing a serving prisoner from voting, was fair in that it reflected the individual circumstances of a prisoner, was well understood by prisoners and the public, was not an unclear law, and reflected the natural understanding of law abiding citizens that criminals should not have an opportunity to influence the law.
Finally, the exception of preventing those convicted of electoral fraud seems most principled. Elections, in a civilised society, are founded upon trust and honesty. For that to be safeguarded the sanctions against unfair play must be harsh. (That there was an exception to the law is a further argument against the proposition that general rules are ‘better’.)
The existing law reflected all these concerns, and there was no reason, and little public desire, for change.
I disagree with EC’s comments. His view seems based on the premise that we have a choice to opt into his so called ‘social contract’. First, the reality is the majority of the population is here by accident of birth and circumstance. Moreover, suggesting that prisoners have no meaningful voice in the legislative process maybe true, but misses the point. It assumes that by exercising the right to vote we actually take a significant role the eventual decision-making process that will follow. Very few of us actually get to have a meaningful say in how our legal system is run and what laws we abide by. The right to vote is a token symbol that we consent to others making the rules on our behalf. That is not to say that voting doesn’t have an impact on the democratic process. Of course it does because it can result in a change of leadership. But prisoners are human beings and it maybe distasteful to acknowledge this because we have an instinctive ‘yuk’ reaction when we talk of criminals. Should prisoners not have their rights and interests represented?
EC has picked up on the elephant in the room that the volumnious media coverage has managed to ignore. What he calls the social contract might be more simply described as the principle that rights do not exist without accompanying responsibilities.
That concept is easily understood, particularly in the present context. The “right” to vote means, for all practical purposes, the right to participate in the process by which laws are made. The accompanying responsibility is the requirement to abide by those laws. Leaving aside de minimus infractions, if someone has breached those laws to such an extent that he or she has received society’s ultimate condemnation of becoming a criminal and been sent to jail, it isn’t hard to accept that he or she must lose the right to participate in the creation of future laws until the debt to society has been paid.
Take Adam Wagner’s summary of the ECHR’s position: restriction on voting rights must be proportionate to the end pursued, and “must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage.“
Simple: the end pursued is enforcing the obligation that the right to vote carries, and universal suffrage and all that is ensuring people have a say in the laws which govern them – but if they can’t be troubled to obey them then they don’t get a say.
The other obvious manifestation of this concept is in the immigration/deportation of prisoners. Thanks to the rights-only focus of the ECHR (in particular the Choudry decision of a few years ago) we can’t even deport undisputed terrorists if they might face maltreatment on return to their home countries. Yet if someone seeks the protection of the UK state surely that carries with it the obligation not to try and destroy it by violent means. Certainly it should require the obligation to obey all criminal laws. If someone chooses not to, then it is their lookout if they get returned somewhere unpleasant.
If that sounds harsh consider this: suppose you rescue someone from a violent home, and put them up in yours for a while. If they proceeded to steal from you and assault members of your family, chances are you’d have them on the street irrespective of the consequences for them, and if faced with that prospect they might have tailored their behaviour accordingly.
The point about a social contract is by far the most important one. It should be central to these discussions, and I agree with Robert Jarvis that it is astonishing that it has not occupied more column-space. In this context, it is worth revisiting the two judgments of the ECHR which will doubtless be held as authorities for the ‘need’ for change. This is, I fear, a long post, but it is vitally important to be aware of the profoundly flawed reasoning of the ECHR in this area. The first judgment is Hirst. In the judgment of the Grand Chamber, at [59], the ECHR held:
“[59] As pointed out by the applicant, the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion, as may be illustrated, for example, by the parliamentary history of the United Kingdom and other countries where the franchise was gradually extended over the centuries from select individuals, elite groupings or sections of the population approved of by those in power. Universal suffrage has become the basic principle…”
At this point it is necessary first to point out the ECHR’s obvious error, that the extension of the franchise through the Reform Acts, first to the poor, and then to women (forgive the simplification of 19th and early 20th century politics) to allow law-abiding members of society who had a productive and positive influence society to have an influence on the laws under which they lived and worked is an entirely separate issue. The breaking of the remains of a feudal aristocracy in favour of a general franchise is an entirely separate issue from prisoners voting. Noone had suggested that poor prisoners should be denied a vote and rich ones allowed, or male prisoners the vote but not women. That is the apposite comparison to make in this context, and the ECHR should not be allowed to make such a sloppy and inappropriate use of history to justify a vitally important ruling.
Were the ECHR historically aware, they would not refer exclusively to C19th century reform (an error lazily copied by the Guardian’s legal correspondent who wrote about the “Victorian laws which deliberately dehumanised prisoners” http://www.guardian.co.uk/commentisfree/libertycentral/2009/apr/10/civil-liberties-prisons-and-probation), they would be aware of the full history of this law. Ignoring the origins in Roman law – the very antiquity of which tends to suggest the concept has some resonance in natural law – the modern origin is in that of attainder, and later the punishments which attached to felons. It is important to note that, historically, voting was considered a privilege, the depravation of which was an important part of the punishment for a serious (not a minor) crime. It isn’t for the ECHR to rewrite history.
One should be at least aware that an often over-looked purpose of the criminal justice system is to satisfy the desire of the innocent victim that there is a proper sanction for the crime. Although that’s not a factor that is often commented upon – it is that satisfaction – that trust in the state – which allows laws to exist at all. This is a constant theme throughout the entirety of history; one only has to consider the brutal revenge killings of the Illiad, or the murky underworld of honour-killings in contemporary Britain, to discover the consequences of a situation where the public do not trust the state to intervene to properly punish perceived crimes. Rather than an ugly, brutal abuse of a criminal’s other Convention rights, the public image of a proper punishment is (though it be distasteful to admit) the foundation on which a law-abiding society rests. We can’t afford to allow individuals to take the law into their own hands, and the symbolism of the punishment that attaches to a crime is an important part of that. Whatever the criminal minority think of their rights to vote, the law abiding majority still perceive the right to vote as a privilege, and we should explicitly reject the ECHR’s reasoning at this paragraph as being simply per incuriam.
The ECHR then went on to consider the circumstances in which a derogation from the Protocol 1, Art 3 right was appropriate: It said at [62]:
[62]… “For example, the imposition of a minimum age may be envisaged with a view to ensuring the maturity of those participating in the electoral process or, in some circumstances, eligibility may be geared to criteria, such as residence, to identify those with sufficiently continuous or close links to, or a stake in, the country concerned…”
The ECHR has then conceded that the ‘maturity’ of a voter is an important consideration. Likewise permanent residence in the country. Having conceded those, isn’t the idea of a social contract a natural companion to those two grounds? Why should someone who isn’t mature enough to contribute be distinguished from a criminal? Arguably, neither have a constructive influence on society, and the ‘quality of democracy’ would be increased by excluding both from the franchise.
The ECHR’s peculiar reasoning continues at [70], where it stated that; “There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.” I find it almost impossible to square the court’s desire to understand the wishes of the people, with its dismissal of public opinion. Isn’t that paragraph an acknowledgment that a majority of the public doesn’t desire prisoners to have the right to vote? If, therefore, the ECHR were truly interested in democratic principles, wouldn’t it acknowledge that public desire by following it?
The ECHR went on to comment at [71] that the “a democratic society [was not prevented] from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention.” Isn’t it axiomatic that a prisoner, has, by the fact of his conviction, been held to have violated the convention rights of another individual? That point was apparently not argued, so it is impossible to comment further.
The reasoning of the court was continued in Frodl, which is hardly itself a model of good jurisprudence. The Court held:
“As regards the status of the right to vote of convicted prisoners who are detained, the Court reiterates that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. It is inconceivable, therefore, that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion… Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions.”
The Court’s reasoning can be analysed in the following terms:
1) To have a functioning democracy, suffrage must be as universal as possible;
2) Accordingly, if the people don’t want prisoners to vote, it’s not for them (under mere democratic principles?) to prevent them; and
3) Because the convention is a list of freedoms, and because detention sounds like a depravation of only one, and knowing that expressio unius est exclusio alterius, it must be that detention isn’t intended to infringe any other convention right;
4) Accordingly, for a defendant to be deprived of his voting rights, he must have committed an offence specifically related to the running of elections.
Such an argument is hardly a good and properly principled basis for legislative change. However, given the propensity of our courts to follow ECHR rulings, the outcome looks fairly bleak. However, in my view it should at least be arguable that a failure to follow any rule imposed by a democratically elected legislature is in fact an issue relating to [not to elections] but to democratic institutions. It’s the same argument as the social contract, but in the wording of the ECHR’s judgment. Under that argument, properly and carefully argued, with the element of proportionality introduced by restricting the sanction to serving prisoners and those convicted of electoral fraud, the ratio in Frodl could be cited a justification for the maintenance of the status quo.