Locked up: the rights and wrongs

Locked up: the rights and wrongs

We should acknowledge that some prisoners are more equal than others – and define a threshold for rights such as voting

By Rupert Myers

What can prisoners do, and what can't they, while they're inside? Eric Allison thinks they should have the vote, Juliet Lyon thinks so too. The European court of human rights agreed with both of them in the 2005 case of Hirst v the United Kingdom, where they said that some "uncitizenlike conduct" might be sufficient to remove political rights, but the UK's ban on prisoners voting did not take account of individual circumstances, or the degree of "uncitizenship" in each case, and was therefore wrong.

Our legal system is on a path towards consequential justice, rather than one that looks just at the acts of the wrongdoer. In an ideal system, the moral burden on us all to obey the law is equal, because we are all morally equal, and thus we must be equally free, and equally bound to respect each other's freedom. Law As a Moral Idea by Nigel Simmonds is a great book on the subject.

The consequence-based approach is shown by the reading in court of victim impact statements, and the attempts to implement "unnecessary, costly and unwelcome" sentencing guidelines (the words of 652 circuit judges) which aim to reduce sentencing inconsistency but may erode the possibility for the guilty to argue in mitigation of their actions.

If punishment is to reflect the breach of our obligations, then we are not all equally bound under the "guidelines" system, because rigid guidelines don't apply a fair process – they look at the outcome and check that it tallies with outcomes in other cases. If the system doesn't enforce our obligations fairly, then that calls into question the extent to which the system protects our equality.

What we need, desperately, is a clear understanding of what pushes people above, or below, the threshold of "uncitizenlike" behaviour, and what that should entail. Below the line are wrongdoers who have exhibited behaviour sufficient to be deprived of certain liberties and rights. It is difficult to decide precisely which rights, and as a consequence not much prison reform occurs. Below might be the ones who are likely to reoffend, and a danger to the rest of us. The rapist Iorworth Hoare has just settled with his victim after it became likely that he would have to pay her a great deal of money because he had won the lottery. At the time of his offence he was impecunious, and not worth suing; he won the lottery on day release, just one example of how enforcing certain rights of those still "below the line" causes a legal headache.

Above the line are those fully entitled to be treated as the rest of us are, but who have done something bad for which they should be punished. They are less likely to reoffend, and had mitigating reasons for their actions which are unlikely to happen again, for instance, stabbing a violent partner.

Allison and Lyon think the place to start reform is in the prisons, but many people in Britain would be appalled if we gave murderers and others the right to vote. The Hoare case shows the headache that prisoners' rights can create. What we need to do is agree a fair threshold for rights like voting, and say which offenders come above that line. This would satisfy the European court for human rights. Immediate scrutiny needs to be at the sentencing stage, where judges must be allowed the discretion to treat prisoners fairly, which doesn't mean that two people convicted of a crime should get the same sentence.

Like liberty, the right to vote must be returned to some, but only where fair and transparent conditions are met. Blanket bans may be a bad idea, but unless we want to seriously question our capacity to restrict the rights of those who commit crimes, allowing all prisoners the vote is to soften the problem of unfair treatment of those caught up in the justice system, rather than looking to the cause.

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I left this comment on his post at Comment is free...

Ok, Rupert, so you have read George Orwell's Animal Farm. How about you try and read a law report properly? Lets just pick one at random, say, Hirst v UK(No2). The Court decided the case applying the principle of universal suffrage. That is, one person one vote. What you are advocating, you stupid boy, is that we should violate Article 14 of the Convention by discriminating against some prisoners. And what moral yardstick do you propose we use? In my view, I don't believe that MPs who fiddle their expenses are in any moral position to decide which prisoners should lose the human right to vote in elections.