Prisoner disenfranchisement: the supposed justifications

Speaking in December last year, David Cameron reinforced the current government position that prisoners serving a custodial sentence in the UK should not be given the right to vote, stating that “if parliament decides that prisoners should not get the vote then I think they damn well shouldn’t.” The European Court of Human Rights (ECtHR) has ruled that the UK’s blanket ban on prisoner voting is unlawful, contravening the European Convention on Human Rights (ECHR). Cameron’s comments followed a warning from Thorbjørn Jagland, secretary-general of the Council of Europe, that if the UK, a founding signatory of the ECHR refused to enforce the judgment, it would weaken and deprive it of any meaning.

Bracketing any questions pertaining to the tension between UK sovereignty, and its obligation to adhere to the rulings of a supranational union, of which it is a founding member, I would like to focus solely on the reasons behind the view that prisoners should not be allowed to vote. What is the justification driving this position? Alex Salmond, too, has recently banned inmates from voting in this September’s Scottish independence referendum, despite UK referendum law allowing him to extend the franchise to inmates, and MPs voted overwhelmingly in favour of upholding the ban in 2011, at 234 votes to 22. There is clear cross-party agreement that prisoners should not be given the right to vote, but what is the reasoning behind this, and is it sound?

During a court case involving a prisoner appealing the ban to the ECtHR, the UK government invoked the two aims that disenfranchisement had; the punishment of the offender, which aimed at the prevention of crime, and the enhancement of civic responsibility and respect for the rule of law. The first aim appears to utilise a deterrent theory of punishment, while the latter aim rests on retributive reasoning pertaining to forfeiture and desert, as well as having rehabilitative aims, in the sense of enhancing the prisoner’s sense of civic character. I will argue that none of the three main theories of punishment invoked; deterrence, retribution and rehabilitation, can sufficiently justify the practice.

Disenfranchisement as retribution

Through the retributivist line of reasoning for disenfranchisement, it seems that the government aims to show that citizenship entails responsibilities and duties as well as rights and privileges, and that disrespect for the law has serious consequences. However, this argument relies on the normatively charged premise that voting is a privilege that may be revoked, rather than a basic, democratic right that all citizens have, in virtue of their being citizens. This is where the debate lies – the UK government is viewing enfranchisement as a privilege, which prisoners no longer deserve, while the ECHR and UK Human Rights Act enshrine voting as a fundamental human right. The retributivist argument is asserting its conclusion in the premise – that prisoners should not get the vote because they have broken the law, and are therefore now prisoners, who do not get the vote. This is circular, and amounts to begging the question. It is still not explained why, in virtue of their offending, their voting rights should be taken away.

The notion of forfeiture operating in the government’s argument for disenfranchisement – that the committing of a crime leads to the loss of certain rights and privileges enjoyed by a citizen, stems from an era where punishment constituted civic death, and all citizenships rights, including property rights, were forfeited. However, now prisoners remain citizens in all other respects, and continue to have rights to services such as healthcare and education, as well as paying tax on their savings, capital gains and any earnings that they receive during their sentence. In the UK it certainly isn’t all rights of citizenship that are forfeited, so why particularly, ought it be voting rights that are lost? Nothing in the argument for forfeiture tells us which rights exactly are to be forfeited, or for how long. It is difficult to defend disenfranchisement non-arbitrarily when it is no longer the case that all rights are lost.

The idea that lawbreaking leads to the forfeiture of rights is a view that can be attributed to John Locke, amongst others, who asserted that, by putting ourselves in a state of war with another, we forfeit our natural rights not to be enslaved or to be denied our rights. If we accept for a moment the view that the right to vote is one of the rights a criminal forfeits by offending, it is still not clear that this can be justified under forfeiture. The forfeiture argument seeks justification by appealing to a conception of rights as contractual, or reciprocal, in that they are enjoyed via a relationship of reciprocity with the state. But this view of rights as reciprocity is inconsistent with other beliefs we have about rights. For example, there are non-resident, expatriate citizens who no longer participate in such reciprocity with the state, yet still retain their rights of citizenship, including the right to vote. Or even non-citizen residents in a state who engage in reciprocity, yet do not receive voting rights. It seems that reciprocity with the state is neither necessary nor sufficient for the enjoyment of rights. What is key, however, and what ensures the enjoyment of rights in these cases, is the status of citizenship, which prisoners do retain.

Disenfranchisement as deterrence

The first aim invoked by the government in its dealings with the ECtHR, states that disenfranchisement serves as punishment of the offender, which is aimed at the prevention of crime. This seems to say that disenfranchisement acts as a deterrent. In order to assess the validity of this claim, it is necessary to explore whether, as a punishment, disenfranchisement does indeed serve this purpose. As a forward-looking theory of punishment, deterrence aims at deterring potential offenders from engaging in criminal activity with the threat of punishment. However it is difficult to see the link between disenfranchisement and the deterrence of crime. It is unlikely that the thought of not being allowed to vote is going to be the critical factor in a criminal’s decision as to whether or not a crime is worth committing. It seems that incarceration and the ultimate loss of liberty is meant to be the primary threat, and so disenfranchisement as a deterrent is superfluous, and so unnecessary. In making its decision that the ban was unlawful, the ECtHR drew support from the case of Suavé (No.2) where it was found by the Canadian Supreme Court that there was no evidence to suggest that disenfranchisement deterred crime. Many criminals may not even be aware that they will lose their voting rights if they offend, so its deterring character is weakened in this respect.

Further, It has been argued that deterrence as a theory is potentially flawed in itself as it involves making assumptions about the psychological and motivational states of criminals, in assuming that they conduct something akin to a cost-benefit analysis as to whether the benefit of a crime outweighs the risk of a criminal record. On this view, spontaneous opportunistic crime and crimes of passion may be left unaccounted for.

Disenfranchisement as rehabilitation

The government’s argument justifying disenfranchisement as a means to ‘enhance civic responsibility and respect for the rule of law,’ seems to be expressing rehabilitative aims. It could be construed as saying that in order to sustain characteristics of a liberal democracy, citizens need to understand what is required of them as citizens, and a way to demonstrate this to an offender is to revoke their right to vote. However disenfranchisement could actually work against this edifying aim. As people who have broken the law, prisoners are amongst those most in need of civic education, and it seems that denying their participation in the civil process is not the best way to foster this. Social exclusion is seen as a major cause of crime and recidivism, and so a ban on prisoner voting could serve to further exclude those already on the margins of society. Whereas, allowing them to vote would mean actively engaging them with the way in which the country is run, and giving them a stake in society. Allowing MPs to come in and canvass for their votes could be conducive to strengthening their civic and political education, arguably much more so than bluntly disenfranchising them.

Implications for democracy

I have maintained that enfranchisement is a democratic right, rather than a privilege. For R. A. Duff, exclusionary punishment such as political exclusion through being denied the right to vote, renders punishment inconsistent with liberal political community, and is therefore unjustifiable. According to Duff, who advocates a form of communicative, inclusionary punishment, a liberal polity must be democratic, and this means it must at least provide all citizens with a role in political decisions, and a way of making their voices heard in political deliberations. On this view, disenfranchisement threatens democracy.

I have attempted to show that disenfranchisement, as punishment cannot be justified as serving a purpose under any of the three traditional theories of punishment. The historical argument from forfeiture, which highlights voting as one of the rights that are forfeited on offending, is insufficient, as it is not clear why the right to vote is amongst the rights forfeited, while others are retained. Purported justifications for losing the right to vote are often fuelled by a view of criminals as outlaws and a class of people who are simply undeserving of the vote. Such arguments ignore the importance and universality of human rights in a democracy, which sometimes yield uncomfortable decisions in their pursuit of equality before the law. It is because of this universality, that there will be people whose rights it may be unpalatable to defend. Further, it is not clear that disenfranchisement serves its purpose under deterrence, and it is arguably counter-productive as a rehabilitative measure, and so cannot be sufficiently justified as a means of punishment.

References

Isobel White, ‘Prisoners’ voting rights,’ www.parliament.uk/briefing-papers/sn01764.pdf‎

John Locke, Two Treatises of Government, Cambridge: Hackett Publishing Company, 1980.

A. Duff, Punishment, Communication, and Community, Oxford: Oxford University Press, 2001.

Cases cited

Suavé v. Canada (Chief Electoral Officer) [2002] 3 SCR 519

Hirst v. the United Kingdom (No. 2) (74025/01) [2004] ECHR 121