Dr Susan Easton’s article, ‘Electingthe Electorate: The Problem Of Prisoner Disenfranchisement1,’ focuses on thevalidity issues that lie within the UK’sban on prisoner voting, which leads to complete disenfranchisement, and howthese issues were brought into the light by the leading case of Hirst v UK2.
Eastonthoroughly argues throughout the article that denying prisoners the right tovote lacks plausibility and cannot be defended on the grounds of risk or thejustification of punishment. Easton’sdisapproval of prisoner disenfranchisement is shown right from the outset ofthe article, as she ultimately labels it as a ‘problem’ in her title. Easton gives the reader the clear impression that shebelieves the denial of the right to vote for prisoners lacks plausibility, isentirely arbitrary and inefficient with regard to the intended aims of theGovernment. For example, the Governments aim of disqualifying prisoners fromvoting is to deter prospective offenders from committing crimes, in addition tocreating a bigger sense of civic responsibility and respect for the law.However, it can be argued that disenfranchising prisoners does not achievethese aims and in fact, does the opposite and reverses them.
As Easton notes, “Hirst argued that there was no actualevidence that the UK ban met the purported aims, nor was there any link betweenthe removal of the right to vote, and the prevention of crime, or respect forthe rule of law,”3 which backs up the point that there is notangible evidence that the ban is helpful nor useful in supporting theGovernment’s intentions. Following the court’s judgement in Hirst, itwas held that the measures used by the UK to achieve their aims were arbitraryin effect. Easton explains this is because of the practical element ofdisenfranchising prisoners which should be considered. The punishment andwhether it would affect the prisoner is entirely dependent on whether anelection is called during the offenders time incarcerated. Therefore, surelythis punishment seems random and is inconsistent as it could impact someprisoners and not others dependent on the time that they are imprisoned ratherthan based on any facts of their crimes committed? Ultimately, it can be arguedthat if this is a punishment is it disproportionate as it does not relate tothe seriousness of the offence and is instead enforced based on factors such astime of the trial. In relation to this, it could be argued that this wouldaffect the more serious offenders as if they are serving a longer sentence thenit is likely that an election will take in this time. More over, Easton argues that surely taking aprisoner’s right to vote awaystrips the individual of the important civic function that comes attached toit, instead of supposedly enhancing civic responsibility as claimed.
Eastonexplains the claim to enhance civic responsibility seems illogical as it isalienating prisoners rather than allowing them any form of contribution orsocial participation in the democratic processes which allow them to feel apart of society with their interests heard, therefore creating a lesser respectfor the law if anything. This act of taking an individuals right to vote awayrelates back to the old notion of civic death found in the law of AncientGreece and Rome; prisoners being disenfranchised can be seen as the lastvestige of suffering a civic death as they are having their civil rights takenaway from them. Easton argues that removal of the right to vote is an atavisticmeasure and subjecting prisoners to a civic death is inappropriate for such amodernised and developed society such as the one that we live in today. Easton explains that she feels it is difficultto justify disenfranchising prisoners on the basis of risk based grounds. Thisis because Easton does not understand where the risk lies, especially as in themajority of cases offenders have been convicted of crimes that do not relate toone of electoral misconduct.
Even where the offender has committed an electoraloffence, which is a small number of cases, a risk of harm cannot reasonably bepredicted from one previous offence. After all the right to vote is recognised by awide array of authors and people alike as being incredibly important;essentially “participation in thepublic realm is a necessary part of fulfilling human life”4 as votingserves your interests, allows your views to be taken seriously and consideredlegitimately by the legal decision makers in addition to giving you at least,partial control, over laws in which you are to abide by. However, althoughEaston holds a certain view about prisoner disenfranchisement, this is not theonly view held regarding the subject. One example of an author who primarilyfocuses on reasons for disenfranchisement of prisoners is Richard Lippke asshown in his article, ‘TheDisenfranchisement of felons.’5 Although Lippke focuses on reasons fordisenfranchisement, Lippke maintains an open mind throughout the article andacknowledges that many of the points given for disenfranchisement can beopposed fairly quickly. One of the first arguments put forward is thatindividuals who commit crimes show contempt and a general disregard for therules of civil society, and as a result, should lose the protection that comesattached to those rules.
The aim of these laws is to establish a scheme ofmutual benefit, yet offenders are unwilling to participate and adhere to therules that are essential to maintain such a scheme. Since they have not abidedto the laws put in place for the communities benefits, it is conceived as fairby Lippke for the Government to remove the rights of participation in thedemocratic systems by denial of the right to vote, that determine what thoselaws are and who is in charge of them. From the readers point of view, I cansee why this argument is deemed as reasonable. If an individual is not going tocomply with the laws that everyone else is and that allow our society tofunction — and instead is going to act against them — why should they have their interestsconsidered as equally as those who act in accordance with the rules? However, although it may be fair for offendersto lose the protection of rules, it is not established which rules they oughtto lose the protections of. It can be contemplated whether it is fair foroffenders to lose the protections of all of these rules. For example someoffenders may have only shown contempt for one or a few specific rules. Thoughthey have shown disregard for one rule, it does not mean that they do notrespect other rules of law in general. In fact, Casper6 found thatoffenders believed that the law is worthy of respect.
The individual in question may not have showncontempt for electoral rules, thus surely it is unfair to deprive the offenderof the right to vote. Easton backs this point in her article, as she notes thatdisenfranchisement unfairly affects a large percentage of prisoners who aredenied a voice in the political process merely because of a moral judgementthat they are unworthy of the vote. Similarly, in Mandeep K. Dhami’s article, ‘Prisoner Disenfranchisement Policy: A Threat to Democracy?’7, Dhami notesthat although the prisoner may lose many freedoms this does not imply that theyshould lose all of their civil rights. Lippke argues that another reason fordisenfranchisement is the hopes of crime reduction, in addition to creating adeterrent effect for prospective offenders. Lippke acknowledges that it iscredulous to think that adding disenfranchisement in adjunction to otherpunishments including imprisonment would all of a sudden work as a symbol ofdeterrence for offenders, merely because of the fact that most offenders areunaware that disenfranchisement is a loss that they are to suffer up until thepoint of being sentenced. It could even be argued that the loss of franchise isone that might not be particularly significant due to the fact that theoffender is unlikely to have been an active participant in political affairs tostart with because of their contempt tothe rules of law. However, it could be argued that in a more fair anddemocratic society, all citizens would value the right to exercise the vote toa greater extent.
On other hand, whilst Lippke understands that labellingdisenfranchisement as a deterrent value comes at a stretch, this does not meanthat it does not serve a purpose of reducing crime even if only slightly. Itmay be argued that offenders, especially those that have committed seriouscrimes, should be disenfranchised due to the fact that they are likely to usetheir votes in ways that do not serve the public interest in relation to crimereduction. For example, they may vote for ideology or figures that would seekto help criminal interests. These interests could include an array of thingsfrom decriminalising many acts, reductions for certain crimes and less use ofimprisonment. If these interests were promoted, it would be reliable to saythat a large percentage of offenders would use their franchise to vote for thisin order to benefit themselves, which in turn would not serve public interest.
Decriminalising acts and reducing sentences for certain crimes would surelyalso enhance the level of crime that takes place in the community and wouldencourage offenders to commit crimes, as they know that they may not beconvicted at all or at the most will serve a shorter sentence than originallyput in place. However, Lippke understands that this can beargued against, as the argument put forward about prisoners voting for criminalinterests is entirely assumptive. Many offenders may conceive themselves as thevictims of the crime committed or may understand that what they have done iswrong and want nothing further to do with a life of crime. This may in fact,lead the offender to vote in ways similar to the rest of the community when itcomes to issues of criminal justice such as those mentioned above. However, wecannot know for sure what offenders would vote for criminal interests andbecause of this it would be extremely difficult to produce a fair process whichwould distinguish those who would vote for these interests against those whowould not.
Nonetheless, even if prisoners were given the right to vote it isunlikely that their votes based on allowing criminal activity would prevail. Ifthe ideology and policies that a party is promoting are potentially harmful tothe public and support criminal activity, is it likely that these policies aregoing to be unpopular with the public and so the party will not be voted in andable to carry these out. In fact, asmentioned above, Casper8 found that offenders believed the law wasworthy of respect. Surely this shows that prisoners would not use their vote ina way that demeans the law by choosing not to serve criminal interests? Eastondoes not believe disfranchisement helps reduce crime or acts as a deterrencefor potential offenders. As mentioned above, Easton notes there is no linkbetween the removal of the right to vote and the prevention of crime so itseems like an invalid reason to disenfranchise someone. In addition, Eastonalso notes that the right to vote is treated rather causally by the publicgiven the low turnout rates of elections, so because of this it may beinsufficient as a symbol of deterrence. In Mandeep K.
Dhami’s article on prisoner disenfranchisement as mentioned above9,Dhami notes many reasons as to why prisoner disenfranchisement is a negativething. One example given is that it can be quite detrimental when it comes torehabilitation and enabling prisoners to socially reintegrate back intosociety. An election reminds its citizens that we are all members of onecommunity whom are working together for the greater good, and so allowing aprisoner to exercise the right to vote reminds them of this bond and may givethem a feeling of usefulness.
Disenfranchising a prisoner instead createsfeelings of isolation and alienation from the rest of the community andpractically renames them as secondary citizens who are of a lesser status thanthe rest of us. This is backed up by a survey conducted by Uggen and Manza10,who found based on thirty-three offenders, that disenfranchisement wasstigmatising and socially isolating. Easton also agrees that excludingprisoners from voting weakens social bonds which may in the long term produceproblems in relation to rehabilitation and re-offending. However, it can be argued that prisonersviolated the social contract and therefore should no longer be a part of it orable to dictate the outcomes that will come about for the community. Thisreflects what the social contract argument stands for as noted in Lippke’s article. According to this argument,those who agree to enter into civil society allow the state to create laws inaddition to helping execute these laws. If these laws are violated, the rightof participation of their own governance is taken away from the citizen.
Inother words, if you go against the rules of law and essentially, your societyand what they agreed to, you are no longer allowed to vote. However, I feel asthough it is necessary for us to consider whether social exclusion can be amajor cause of crime. Denying prisoners the right to vote may be a further wayof isolating them from the community that we hope that they will return andreintegrate with to become effective citizens that act in good faith. The extent of difference of opinion in relationto prisoner disenfranchisement is clear to see. However, I feel as though someauthors are more perceptive to the issue at hand and are able to balance thepossible consequences of allowing prisoners to vote with the advantages ofenfranchisement in general. This balancing of positives against negatives andwhat would be the best outcome does create a meaningful disagreement as itcould essentially impact our society in addition to it being about an importantsubject of rights, so all arguments should be carefully considered. AlthoughEaston produces many valid points in her article, it primarily focuses on aview that prisoners should be allowed to vote whereas Lippke examines for andagainst points more closely. In general, it seems as though points made fordisenfranchisement are based on the assumption that the denial of the right tovote is simply a component of the punishment that is imposed.
Whereas those infavour of enfranchisement of prisoners base their arguments on the basis thatcivil rights should be protected in all circumstances. I feel as though Susan Easton’s stance on prisoner disenfranchisementwould improve the law. The law currently states that convicted prisoners (witha few exceptions) are denied the right to vote in national or local elections.With reference to the above issues it seems as though enfranchising prisonerswould be more beneficial and outweigh advantages of disenfranchisement, as wellas how it would be compatible with the charter of human rights. In the case of Hirst v UK, a majority of the EuropeanCourt of Human Rights held that the law regarding the UK ban on prisoner votingwithin the Representation of the People Act 1983,11 was inconsistentwith Article 3 of Protocol 1 of the European Convention on Human Rights whichrefers to the ‘free expression ofthe people in the choice of the legislature’ rather than expressly to the right to vote.12 However, when considering implications ofadopting Easton’s approach thefollowing should be taken into account. It is likely that not at all prisonersare to regain the right to vote and so in this case, a partial ban will beenforced.
A partial ban is not necessarily a bad thing and is already betterthan what we have currently in regard to those supporting enfranchisement ofprisoners. A partial ban can also be seen to functioning in other jurisdictionssuch as Iceland, where disenfranchisement only applies to prisoners that areserving a sentence of four years. This would also require a less dramaticchange in the law. However, it could be argued that creating an eligibilitycriteria would be difficult, as how do you create a fair process ofdistinguishing what offenders should be allowed to vote? In response to this,it could be argued that the crime hierarchy should be considered; those withshort custodial sentences of a certain duration should be given the right tovote and offenders with large, life sentences that have committed crimes ofsuch a heinous nature should not be allowed.
Another example of prisoners not being eligible could be those that areserving sentences because of electoral crimes. Surely the punishment of beingdisenfranchised would be relevant to those that committed a crime related tovoting? Another issue that should be considered is methods of voting forprisoners and where prisoners should be permitted to cast their votes. It maybe practical and more convenient for polling stations to be set up within theprison grounds. Postal voting could also be a method of use, however supportfor illiterate prisoners should be considered as well as time frames of sendingthe letters. Practicality issues should be tackled however, as it is unethicalto argue prisoners should not be allowed to vote merely because the processwould be costly and impractical.
Another implication is the contestability of rights.Even though all of us agree that human rights is a positive thing and ought tobe protected, there will always be disagreement amongst ourselves about whichrights should be protected. This is because of questions such as what it meansto protect a particular right and what happens if two rights conflict with oneanother.