VEP 0028
Written Submission by Dr Cormac Behan (University of Sheffield) VEP 0028
Summary of the main points
The main objective of my submission is to bring to the attention of the Joint Committee on the draft Voting Eligibility (Prisoners) Bill the experience of prisoner enfranchisement in a number of jurisdictions where it has been the subject of parliamentary and legal debate, with particular reference to the Republic of Ireland. This submission begins with answering the questions set out by the Joint Committee. It invites the Joint Committee to consider enfranchisement of prisoners and outlines some of the arguments and evidence in favour of this proposal. It makes the case that ‘civil death’ status on which prisoner enfranchisement is based is an antiquated concept and is not compatible with modern democratic principles. It concludes with an examination of prisoner enfranchisement in a number of jurisdictions which may assist the Joint Committee in their consideration of the issue.
Author
I am a lecturer at the Centre for Criminological Research, School of Law, University of Sheffield. Prior to taking up this position, I was a teacher in Irish prisons for 14 years. I have undertaken a comparative study of prisoner enfranchisement and conducted research with prisoners about political participation and civic engagement. This research has been published in academic journals and presented at conferences internationally (see references at end of submission).
Submission
This submission will invite the committee to consider alternatives to a, b and c set out in the proposals above. It will begin by making the case that all prisoners should be enfranchised for philosophical, political and practical reasons. It will examine many of the issues that form part of the committee’s deliberations and conclude by outlining the experience of a number of jurisdictions that allow prisoners to vote, with particular emphasis on the Republic of Ireland.
The cornerstone of modern democracy is the right to vote. Depriving any person of this right negates the social contract on which democratic legitimacy is built, as power is wielded without the authority of all citizens. In a modern democracy, without consent being given by all the members of society, the whole polity is undermined.
The concept of civic death is an antiquated and outdated idea in a modern democracy. The denial of the right to vote by the judiciary, executive or legislature undermines the consent on which modern democratic authority is built. Society cannot go back to a time when an elite decided on who should be the electorate. Removing the right to vote not only undermines the social contract but damages the social compact on which community and citizenship is constructed. While it is argued that governments have an obligation to those who obey the law to punish those who break the law, this fails to locate the law in a wider social and political context.
Disenfranchising a section of the population tests the limits of liberty in a democracy. Denying the franchise to any section of the population, even because of wrong-doing, leads to those who have the vote deciding who has the right to the franchise. According to the European Court of Human Rights, to deny the right to vote to prisoners is ‘tantamount to the elected choosing the electorate’ (Hirst v. United Kingdom (No.2), 2005). It tilts the outcome of elections in favour of those who are allowed to vote.
The denial of the vote to a prisoner, in category a or b above is also related to the timing of an election. If an individual is serving a sentence on election day for a minor offence they may be denied the opportunity to exercise their franchise. An individual could serve a number of years in prison for a more serious offence and still have the opportunity to vote, if they were no longer incarcerated on election day. If voting is one of the most important aspects of social contract, then these considerations make denying it in this context somewhat arbitrary.
In a and b above, it is imprisonment that will decide if a prisoner keeps or loses the right to vote rather than their receiving a conviction. In the Hirst case, two judges of the European Court of Human Rights observed that ‘the reasons for handing down a custodial sentence may vary. A defendant’s age, health or family situation may result in his or her receiving a suspended sentence. Thus the same criminal offence and the same criminal character can lead to a prison sentence or to a suspended sentence’ (Hirst v. United Kingdom (No.2), 2005). They concluded that the reason the right to vote is denied ‘is the fact that the person is in prison’. In different jurisdictions, two individuals may be convicted of the same crime, and one may be sentenced to a term of imprisonment and not allowed to vote while the other receives a non-custodial sentence and exercises their franchise. As the majority of those sentenced in the United Kingdom do not receive a custodial sentence, this reiterates the point about its arbitrary nature.
There are strong arguments and evidence that prisoners’ maintaining a link with society outside, and in particular with their local community and electoral area, can act as stimulus towards reintegration. To remove the right to vote - one of the most important aspects of citizenship – adds to the dislocation from, and disconnection with, the world outside prison walls. It creates another layer of punishment beyond the denial of liberty, becomes an instrument of social exclusion, and can have significant longitudinal consequences in terms of voting among ex-prisoners. To deny the right to vote not just undermines an individual’s citizenship, it can weaken the fabric of communities that have greater proportions of their citizens incarcerated. Finally, it undermines the universality on which modern democratic authority is built.
Disenfranchisement has its roots in the ancient concept of ‘civil death’ based in Greek, Roman, Germanic and Anglo-Saxon law. In ancient Greece, ‘civil death’ meant that certain offenders forfeited all their civil rights, including the right to property and possession, the right to inherit and bequeath, the right to bring suit, the right to vote and the right to appear in court. In Roman law, an individual pronounced ‘infamous’ was prohibited from serving in the army, appearing in court, making speeches, attending assemblies, and voting. Being declared infamous could be for a criminal or immoral act. In later times, ‘outlawry’ was used to punish those who committed serious crimes. The outlaw was expelled from the community, their property confiscated and they were denied all rights. During the Middle Ages, the outlaw was deprived of legal existence. Ultimately, in extreme cases, the outlaw being outside society and therefore beyond protection from the realm could be killed with impunity.
English law created its own punishment of attainder. In feudal England, the Crown seized the property of felons as part of their punishment. The attained, for a felony or crime of treason, was liable to three penalties: forfeiture – the confiscation of chattels and goods; ‘corruption of the blood’ – they were unfit to inherit, possess or leave their estate to heirs, and the land was forfeited to the local lord; finally, the attained was ‘dead in law’, and could not bring suit or appear as a witness in court. They could not perform any legal function, including voting. While most civil death statutes have been abolished in modern democracies, one of the few which remains as a direct result of conviction and sentence to imprisonment is loss of the right to vote.
Those who argue for disenfranchisement of prisoners use a social contractarian model with reference to Hobbes, Locke, Rousseau and Kant. Modern proponents of prisoner disenfranchisement tend to argue that those who have broken the law should not be allowed to make the law. Some argue that law abiding citizens have a right to decide who they wish to exclude – for example prisoners – from the polity. Indeed, they argue that it is incumbent on a society to define the limits of liberty and create laws that exclude those who will not accept this framework. This indicates that certain activity – breaking the law- is unacceptable and therefore those who engage in it should be placed outside of the polity by being denied the right to vote.
Those who argue for disenfranchisement believe individuals sentenced to prison lose not only their liberty, but by virtue of being incarcerated, other rights. It is sometimes an intended outcome of imprisonment and at times one of the unintended consequences. In most countries, on imprisonment, citizens lose many other rights, along with their liberty. Those in favour of disenfranchisement believe that losing the right to vote should be a direct, rather than merely a collateral consequence, of imprisonment. To disobey the law, communally created, undermines the right to influence who makes the law.
Those in favour of prisoner disenfranchisement argue that is the most powerful message, both real and symbolic, to both law-abiding and non law-abiding citizens of the importance society places on obeying the rules created by representatives of the people. Advocates of disenfranchisement believe it acts as a lesson in civic education. A belief in the democratic process means that those who have not been willing to accept the outcome of that process - the passing of laws – debar themselves from the right to participate in it. Those who argue for prisoner disenfranchisement are convinced that the rights of citizenship are inextricably linked with responsibilities and obligations. Failure to appreciate the responsibilities and obligations takes away the rights of citizenship, central to which, is the right to vote.
Citizens bring rights with them to prison. These are set out in various policy documents and international agreements, including the UN Standard Minimum Rules for the Treatment of Prisoners (1955), the European Convention on Human Rights (1951), European Prison Rules (2006) and Prison Rules for England and Wales (1999). These include the right to life, to be treated with dignity, the right to legal representation, a free and fair trial, a safe living environment, education, etc. In Raymond -v- Honey (1983 1 AC 1), Lord Wilberforce stated that: ‘under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication.’ The European Court of Human Rights in the Hirst case ruled 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’ (Hirst v United Kingdom (No. 2), 2005). The right to vote is included in European and international treaties. The European Convention on Human Rights guarantees that: ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’ (Protocol 1: Article 3). Unless there are substantive reasons otherwise, imprisonment should not remove the right to vote.
Prison is about loss of liberty, not the loss of citizenship. Voting is a cornerstone of the concept of citizenship in a modern democratic polity. For those who would argue that imprisonment should comprise more than the denial of liberty, including the removal of the franchise as a direct or collateral consequence of imprisonment, this changes the nature of that punishment. If imprisonment, rather than conviction, is the deciding feature, this is a very arbitrary way of denying citizenship rights as many of those who receive a conviction are not given a custodial sentence. In the United Kingdom, the majority of those convicted will not automatically receive a custodial sentence. If imprisonment is a deciding factor, this will only include those who have a custodial sentence at the time of elections.
4. What are the financial implications of maintaining the current ban in terms of claims by prisoners for compensation?
This question is outside my area of expertise.
5. Is sentence length a legally robust basis on which to retain an entitlement to vote?
This question is outside my area of expertise.
6. What would be the likely legal consequences, both domestically and internationally of:
a) keeping the law as it is?
b) passing legislation giving some prisoners the right to vote, but in a way that maintains a form of blanket restriction?
c) seeking to comply by enfranchising the minimum number of prisoners possible consistent with our international legal obligations?
These questions are outside my area of expertise.
7. Would giving prisoners the right to vote have any significant administrative impact on either the prison system or the Electoral Commission?
Using the Irish experience as an example, there was no significant administrative impact, either on the prison system or the electoral authorities. Prisoners registered in their home constituency and became another category of postal voters. Under the legislation, the prison management, in liaison with local electoral authorities, organised voting in each institution. After an individual votes, their ballot paper is put inside an envelope and this envelope and a declaration of identity are then placed in a covering envelope. The prison official forwards the ballots to the returning officer and these ballots are opened and counted in the same way as others in the postal voter category. There were no reported administrative difficulties, from either prisoners or prison authorities, with this procedure. If UK decides to enfranchise prisoners by means of a postal ballot in their home constituency, it is unlikely to have a major administrative impact on either the prison system or Electoral Commission.
8. Is there any evidence to suggest that allowing prisoners to vote would have a significant impact on particular constituencies?
Most jurisdictions that allow prisoners to vote do so by way of postal ballot from their home, rather than the prison, constituency. If the United Kingdom follows this example, this reduces the potential of a ‘voting bloc’, i.e. all voters in the same prison casting their ballot for a single candidate in the constituency of the prison. If registration is in the home constituency by postal voting, this will dilute the opportunity for prisoners to skew the outcome of a particular constituency, even if they all voted (although there is no evidence that this is the case) for the same candidate. Therefore it should not have an impact on particular constituencies that contain prison/s.
There is another consideration in determining if voting would have a significant impact on particular constituencies. In the Republic of Ireland, various studies have found that the bulk of prisoners come from disadvantaged urban areas, with a number of electoral districts and constituencies containing a higher proportion of those incarcerated in comparison to other districts. If the experience of Ireland is the same in the United Kingdom, then, because of the disproportionate number of prisoners from certain electoral areas, this could impact on the outcome of certain constituencies. However, this perhaps raises issues outside the remit of this committee.
In terms of the impact of prisoner voting in general, if the objective of prisoner enfranchisement is not only to facilitate, but as with all citizens, encourage democratic participation, prisoners as voters will have the same impact on election outcomes as other citizens, their input being equal to every other voter on election day.
9. What lessons can be drawn from the experience of other countries regarding prisoner voting?
The following briefly outlines the experience of prisoner enfranchisement in number of jurisdictions where the issue has caused some recent debate, especially those which allow prisoners to vote, with particular emphasis on the Republic of Ireland. Prisoner enfranchisement has been a subject of controversy in a number of jurisdictions outside Europe. The following are some examples:
In 1996, the Israeli Supreme Court upheld prisoners’ right to vote after a case was taken to try to prevent voting by a prisoner in the election to elect the successor to Yitzhak Rabin. On the Knesset website, there is information in English about prisons and places of detention where electors are allowed to vote (www.knesset.gov.il). During elections, polling stations are set up in prisons and detention centres.
In South Africa, during the election to succeed Nelson Mandela, the issue of prisoners’ access to the franchise was a subject of some controversy with the Constitutional Court instructing the government and the Electoral Commission to make ‘all reasonable arrangements’ to enable prisoners to vote in the forthcoming election because the right to vote imposes ‘positive obligations on the legislature and the executive’ (August v. Electoral Commission, 1999). In the 2004 election, the Court again intervened and reiterated its earlier ruling guaranteeing prisoners the right to vote. In a majority verdict, it ordered the government to put in place mechanisms to allow all prisoners to vote in the forthcoming elections. The Chief Justice, Arthur Chaskalson, declared: ‘In light of our history where denial of the right to vote was used to entrench white supremacy and to marginalise the great majority of the people of our country, it is for us a precious right which must be respected and protected’ (Minister for Home Affairs v. Nicro, 2004). The legislation targeted ‘every prisoner sentenced to imprisonment without the option of a fine’. The Court rejected the government’s blanket ban as disproportionate on the basis that it did not discriminate between those who had longer or shorter sentences (Minister for Home Affairs v. Nicro, 2004).
In 2002, the Canadian Supreme Court by a margin of five to four found a 1993 electoral law to be unconstitutional. In Sauvé v. Canada ((No. 2) 2002), the majority found that the ‘right to vote is fundamental to our democracy and rule of law and cannot be lightly set aside.’ The denial of the vote would not promote civic responsibility as the government had argued but it was ‘more likely to send messages that undermine the respect for the law and democracy than messages that enhance those values.’ The Court rejected the government’s argument that denying prisoners the vote because of some ‘vague and symbolic objectives’ of enhancing civic responsibility and respect for the rule of law and refused to accept the government’s case that certain categories of prisoners should receive additional punishment by denying them the right to vote. It also rejected the lack of proportionality in the exclusion of all prisoners sentenced to over two years to vote in federal elections. The Supreme Court ruled that the government had ‘failed to identify particular problems that require denying the right to vote, making it hard to conclude that the denial is directed at a pressing and substantial purpose.’ Therefore, it declared that they could not ‘permit elected representatives to disenfranchise a segment of the population’. The Court concluded that to ‘deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility’ (Sauvé v. Canada (No. 2), 2002).
In August 2007, in time for the upcoming general election the Australian High Court struck down legislation introduced a year previously that enforced a blanket ban on prisoners’ voting (prior to this, some prisoners, depending on sentence, were allowed to vote). Four of the six judges believed that the 2006 Act did not sufficiently differentiate between the gravity of crimes. The Court found that there were circumstances in which limitations could be placed on the right to vote but there was not enough evidence in the case of Vicki Roach, an Aboriginal prisoner, who took the case. It should only be for a ‘substantial’ reason. The Court emphasised the centrality of the franchise to the concept of representative government and ‘the existence and exercise of the franchise reflects notions of citizenship and membership of the Australian federal body politic’ (Roach v. Electoral Commission, 2007). They rejected the argument that the mere fact of criminal conduct sufficiently serious to warrant imprisonment necessitates this exclusion. There was no distinction in treatment between those who were serving a few days and those serving much longer sentences. The Court continued: ‘the franchise is critical to representative government, and lies at the centre of our concept of participation in the life of the community, and of citizenship’ (Roach v. Electoral Commission, 2007).
In 2006, the Republic of Ireland passed legislation allowing prisoners to vote. Prior to the passing of the Electoral (Amendment) Act 2006, prisoners in the Irish Republic were in an anomalous position: there was no law on the statute books which specifically barred them from voting; however, there was no facility to allow them to cast their ballot. Under the Electoral (Amendment) Act 1992, prisoners could register to vote at the address where they were ordinarily resident prior to their imprisonment. This position was challenged by a prisoner and held to be constitutionally lawful in the case of Breathnach v. Ireland (2001). According to the Chief Justice, Ronan Keane: ‘It is of course clear that despite the deprivation of his liberty which is the necessary consequence of the terms of imprisonment imposed upon him, the applicant retains the right to vote and could exercise that right if polling day in a particular election or referendum happened to coincide with a period when he was absent from the prison on temporary leave’ (Breathnach v. Ireland, 2001). While prisoners had a right to be registered in the constituency where they lived prior to incarceration, they had no right to postal voting or access to a ballot box. However, if a prisoner was on temporary release on election day, they could vote if they were registered.
In the aftermath of the Hirst case, the Minister for Environment, Heritage and Local Government introduced the Electoral (Amendment) Bill 2006 which allowed all prisoners to vote, regardless of sentence or crime. Voting was to take place by means of a postal ballot. A select committee considered many aspects of the bill and their discussions are available at http://debates.oireachtas.ie/ENS/2006/11/02/. A number of issues were covered in these discussions, including penal reform, using the electoral process to promote responsibility among prisoners, encouraging civic engagement and prisoner reintegration.
In contrast to other jurisdictions, there was virtually no disagreement about prisoner enfranchisement in the Oireachtas (Irish Parliament), media or wider civic society. The Oireachtas passed the legislation, with no member speaking against enfranchisement; there was negligible media attention and virtually no public discourse about the issue. As the discussion was relatively low-key, very few prisoners were aware of the significance of the change in legislation that enfranchised them.
Research in the Republic of Ireland indicates that when enfranchised, prisoners remain part of the hard-to-reach groups. Even after enfranchisement, prisoners are among the groups that will need extra supports to encourage them to participate in the democratic process. The Committee could examine the experiences of enfranchisement in the Republic of Ireland and elsewhere which may be of some assistance in their deliberations on the draft Voting Eligibility (Prisoners) Bill. Further examination of the international context, the history of prisoner enfranchisement and the experience of voting in the Irish Republic can be found in the following articles:
Behan, C. (2102), ‘“Still Entitled to our Say”: Prisoners’ Perspectives on Politics’, The Howard Journal, 51 (1): 16-36.
Behan, C. (2011), “The benefit of personal experience and personal study”: Prisoners and the Politics of Enfranchisement. The Prison Journal, 91(1): 7-31.
Behan, C. and O’Donnell, I. (2008), ‘Prisoners, Politics and the Polls: Enfranchisement and the Burden of Responsibility’. British Journal of Criminology, 48 (3): 319-36.
June 2013
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