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Wednesday, May 18, 2011

Jeff King: Should prisoners have the right to vote?

Jeff King: Should prisoners have the right to vote?

MAY 18, 2011 · 12:28 PM

I think they should, and want to explain why in a way that addresses the issue recently faced by the courts and by Parliament. The prisoner voting saga culminated in the Hirst v UK (No.2) [2005] ECHR 681 case before the Grand Chamber of the European Court of Human Rights, and the nearly five hour debate on the floor of the House of Commons which ended with a 234-22 vote in favour of a resolution that “supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.”: House of Commons Debates, 10 February 2011, Vol 523, No.116, 493-586. The saga, for Parliament, represented two distinct issues: whether the Strasbourg Court was exceeding its competency; and whether prisoners ought, as a moral and human rights matter, to have the right to vote. This blog entry is concerned only with the second of these questions, but as it turns out, the status of the right to vote as a human right is highly relevant to the resolution of this moral issue.

The debate in the Commons was supposed to address that moral question in order to satisfy the finding in Hirst that the impugned 1983 law, which carried forth without debate a policy adopted in 1870, could not be justified as being necessary in a democratic society given that Parliament had not debated the issue in light of modern day penal policy: Hirst v UK, [79]; but see Joint Dissenting Opinion of Justice Wildhaber et. al., [7]. However, the Commons was almost entirely preoccupied with the question of whether Strasbourg had exceeded its authority or was staffed with incompetent judges. Indeed, the matter swung so much that way, that the Attorney General was forced to remind the House of the point of the debate, eliciting the following hilarious exchange:

The Attorney General (Mr. D Grieve): ‘Members might also wish to focus on why they consider the current ban, or some variant of it, to be reasonable and proportionate in our own national context. It was the absence of debate of that issue that appeared to make the Court take the view that our ban was indiscriminate.’ (HC Debate, 513)
Chris Bryant (Lab): ‘Really?’ (513)
Ben Gumner (Con): ‘I am slightly worried by what my right hon. and learned friend said earlier about the purpose of this debate.’ (515)
David Davidson (Con): ‘Does the AG accept that, in being a lawyer, he has the problem of over-complicating matters? [Laughter.[sic]] Is not the basic issue whether we in this country should decide our line on whether prisoners should be able to vote – or should it be decided by somebody else?’ (517)

So much for reasonable disagreement about the scope of the right to vote. In fact, as Liora Lazarus has noted on this blog in her response to Graham Gee, it was almost impossible to find any discussion which acknowledged the existence of the right and tried to delineate its scope. Only a few could arguably have been said to address the issue that way: see Long (HC Debates, 532-33); Qureshi (535-36); Corbyn (538-39). In fairness, a few MPs did address the moral issue moderately squarely, and at times the debate was very impressive on all sides of the issue. The most frequent argument against prisoner voting is that such criminals had broken the social contract: HC Debate, 527, 544, 563. One can be tempted here to get philosophically pedantic, and claim that no one actually signed any social contract, and that a ‘hypothetical contract is not simply a pale form of an actual contract; it is no contract at all.’ (Dworkin: Taking Rights Seriously (1977: 17-18). But what the MPs surely meant is that community life entails obligations of reciprocity, one in which the benefits of the state system and mutual forbearance come with the burdens of obedience to the rules adopted fairly by the community. One can at once see the allure and limitations of this argument. It is among the better reasons for why we normally obey community rules (though not always, see Raz, The Authority of Law (1979: Ch.12). But it’s less convincing to those who have had poor life chances, and received a slim share of the alleged benefits of forbearance. The link between inequality and incarceration is shocking: Wilkinson and Pickett, The Spirit Level (2010: ch.11). And let it not be forgotten that due to exactly this type of reasoning, which essentially justifies depriving voting for life, one in eight African-American men is ineligible to vote in America: Cole, ‘Can our shameful prisons be reformed?’, NY Rev Books, 19 Nov 2009, §4. The fact that Britain tailors the disenfranchisement to the prison term is less cruel, but it borrows the same reasoning.

But I want to suggest that the argument is misguided for another reason. It implicitly fails to recognise a very relevant dimension of the issue, namely that the right to vote is a fundamental human right. It is not a privilege, like a driving license or access to the gym on weeknights. The denial of this claim, including immediately by the two sponsors of the resolution, was a veritable leitmotif of the debate:

Jack Straw: ‘the issue before us today – is by no stretch of the imagination a breach of fundamental human rights. Rather it is a matter of penal policy…’ (HC Debates, 502; see also 493).
David Davis: ‘[T]here is an important point about not confusing the rights that are properly held by everybody who is a British citizen…with those much more circumscribed rights that are given to prisoners.’ ): (493).
Many others: 537, 539, 542, 545, 548, 553, 556, 557, 577 (debate on that point), 578.
But the right to vote is a human right. Participation in self-government is the most basic expression of the principle of equality, a recognition that each person has basic, equal and presumptively irrevocable civic status in the society. So the many MPs who denied that idea are wrong as a matter of law, and of morality: see in addition to Art.3, AP.1 of the ECHR, the International Covenant on Civil and Political Rights, art. 25(b); Waldron, Law and Disagreement (1999: Ch.11), and cf. Griffin, On Human Rights (2008: ch.15, but note 254-255). (Some parliamentarians became exercised over the Court’s deriving a right to vote from the duty to hold periodic elections in Art.3, AP1 (see Hirst v UK, [56]-[62]) but that is hardly an interpretive stretch by comparison to equality rights for transsexuals or gays in the military). The fact that it is a human right means it is among the most basic conditions for human dignity, autonomy, and citizenship. One does not forfeit a fundamental human right as the default penalty for non-compliance with law.

So what does that mean then? I would say this: it is of the essence of basic human rights that they are qualified or limited, if at all, only for a legitimate or compelling state interest achieved by proportionate means (i.e. are necessary and strike a fair balance). I think this admittedly legalistic proportionality principle neatly encapsulates the presumptive or peremptory force, or urgency, we attach to rights in the realm of moral practical reasoning as well. Limitations of those types of interests require special justification.

We recognise this principle in the human rights law relating to prisoners, who continue to enjoy nearly all their other human rights while in prison, to the extent that they are exercised compatibly with the basic regimen of prison life: Hirst v UK, [69]. But don’t we take away the prisoner’s right to liberty? How can one say that this can go but the right to vote must stay? This is believed to be the ace in the back pocket of those opposing prisoner voting. It is a difficult issue, but the analogy breaks down upon close examination.

In Hirst, the UK offered three legitimate state aims: (1) it would punish crime; (2) it would prevent crime; and (3) it would enhance civic responsibility and promote respect for the rule of law: Hirst v UK, [50], [74]-[75]. Consider these aims and the deprivation of liberty. As to punishment, it is notable that we do not incarcerate all offenders. Typically it is only the more serious and violent ones. In these cases, it is plausible to say that incarceration is necessary to punish, because it may well be the only acceptable social response that constitutes a grave or real sanction for the offender in the relevant circumstances. Second, imprisonment at least arguably constitutes a deterrent, and, more importantly, it takes serious criminals off the streets or out of bank boardrooms where, if left, they would be liable to continue harming the public. Third, the rehabilitation/civic responsibility function of prisons is sharply contested. But there is at least a prima facie argument that without rattling the jailhouse keys, it would be hard to induce offenders to take up activities designed to facilitate their constructive re-entry into civil society, including especially the conditions for release on license (parole).

Disenfranchisement cuts a poor figure next to the deprivation of liberty, at least when these aims are contemplated. Taking them in reverse order, the idea that denial of the vote enhances civic responsibility is ludicrous. It is the very negation of their civic capacity, a message of mandatory disengagement, and of revoked social status: see HD Debates, 576-577 (Lorely Burt MP (LibDem), a former prison governor); see also 536 (Qureshi (Lab)), 538-39 (Corbyn (Lab)), 545 (Brake(LibDem)). Second, denying the vote will in no way deter people from crime, given that many prisoners would not vote anyway, and the loss of the vote would add nothing by way of discouragement, for most offenders, to the loss of liberty. And the vote itself will not harm the public through the choice of harmful candidates. (This public protection rationale may justify, in my view, disenfranchisement in cases such as post-war Germany or Rwanda, or in cases of electoral fraud, where there is a special proportionality akin to expulsion from a profession for misconduct). We thus arrive at the third argument – that it is necessary to punish the criminal. I see why some will think this is punishment, even though for most prisoners it will not be. But it is not necessary to punish, because the deprivation of liberty and subsequent difficulties in re-joining society constitute the real and effective forms of punishment. It is true that it is additional punishment for those that care, but then that does not make it necessary, nor does it explain why some other form of additional punishment (no doubt more effective if pain is the goal) could not be sought.

At the very base then, my argument amounts to this: we do not give violent prisoners the vote because they “deserve” it; we do so because they are presumptively entitled to vote as a basic human right, not as a privilege, and we have no good argument for saying it is necessary to take it away.

Jeff King is a Fellow and Tutor in Law at Balliol College, Oxford.

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