Dr is it disproportionate as it does not relate

Dr Susan Easton’s article, ‘Electing
the Electorate: The Problem Of Prisoner Disenfranchisement1,’ focuses on the
validity issues that lie within the UK’s
ban on prisoner voting, which leads to complete disenfranchisement, and how
these issues were brought into the light by the leading case of Hirst v UK2. Easton
thoroughly argues throughout the article that denying prisoners the right to
vote lacks plausibility and cannot be defended on the grounds of risk or the
justification of punishment.


disapproval of prisoner disenfranchisement is shown right from the outset of
the article, as she ultimately labels it as a ‘problem’ in her title. Easton gives the reader the clear impression that she
believes the denial of the right to vote for prisoners lacks plausibility, is
entirely arbitrary and inefficient with regard to the intended aims of the
Government. For example, the Governments aim of disqualifying prisoners from
voting is to deter prospective offenders from committing crimes, in addition to
creating a bigger sense of civic responsibility and respect for the law.
However, it can be argued that disenfranchising prisoners does not achieve
these aims and in fact, does the opposite and reverses them. As Easton notes, “Hirst argued that there was no actual
evidence that the UK ban met the purported aims, nor was there any link between
the removal of the right to vote, and the prevention of crime, or respect for
the rule of law,”3 which backs up the point that there is no
tangible evidence that the ban is helpful nor useful in supporting the
Government’s intentions.

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Following the court’s judgement in Hirst, it
was held that the measures used by the UK to achieve their aims were arbitrary
in effect. Easton explains this is because of the practical element of
disenfranchising prisoners which should be considered. The punishment and
whether it would affect the prisoner is entirely dependent on whether an
election is called during the offenders time incarcerated. Therefore, surely
this punishment seems random and is inconsistent as it could impact some
prisoners and not others dependent on the time that they are imprisoned rather
than based on any facts of their crimes committed? Ultimately, it can be argued
that if this is a punishment is it disproportionate as it does not relate to
the seriousness of the offence and is instead enforced based on factors such as
time of the trial. In relation to this, it could be argued that this would
affect the more serious offenders as if they are serving a longer sentence then
it is likely that an election will take in this time.


More over, Easton argues that surely taking a
prisoner’s right to vote away
strips the individual of the important civic function that comes attached to
it, instead of supposedly enhancing civic responsibility as claimed. Easton
explains the claim to enhance civic responsibility seems illogical as it is
alienating prisoners rather than allowing them any form of contribution or
social participation in the democratic processes which allow them to feel a
part of society with their interests heard, therefore creating a lesser respect
for the law if anything. This act of taking an individuals right to vote away
relates back to the old notion of civic death found in the law of Ancient
Greece and Rome; prisoners being disenfranchised can be seen as the last
vestige of suffering a civic death as they are having their civil rights taken
away from them. Easton argues that removal of the right to vote is an atavistic
measure and subjecting prisoners to a civic death is inappropriate for such a
modernised and developed society such as the one that we live in today.


Easton explains that she feels it is difficult
to justify disenfranchising prisoners on the basis of risk based grounds. This
is because Easton does not understand where the risk lies, especially as in the
majority of cases offenders have been convicted of crimes that do not relate to
one of electoral misconduct. Even where the offender has committed an electoral
offence, which is a small number of cases, a risk of harm cannot reasonably be
predicted from one previous offence.


After all the right to vote is recognised by a
wide array of authors and people alike as being incredibly important;
essentially “participation in the
public realm is a necessary part of fulfilling human life”4 as voting
serves your interests, allows your views to be taken seriously and considered
legitimately by the legal decision makers in addition to giving you at least,
partial control, over laws in which you are to abide by. However, although
Easton holds a certain view about prisoner disenfranchisement, this is not the
only view held regarding the subject. One example of an author who primarily
focuses on reasons for disenfranchisement of prisoners is Richard Lippke as
shown in his article, ‘The
Disenfranchisement of felons.’5


Although Lippke focuses on reasons for
disenfranchisement, Lippke maintains an open mind throughout the article and
acknowledges that many of the points given for disenfranchisement can be
opposed fairly quickly. One of the first arguments put forward is that
individuals who commit crimes show contempt and a general disregard for the
rules of civil society, and as a result, should lose the protection that comes
attached to those rules. The aim of these laws is to establish a scheme of
mutual benefit, yet offenders are unwilling to participate and adhere to the
rules that are essential to maintain such a scheme. Since they have not abided
to the laws put in place for the communities benefits, it is conceived as fair
by Lippke for the Government to remove the rights of participation in the
democratic systems by denial of the right to vote, that determine what those
laws are and who is in charge of them. From the readers point of view, I can
see why this argument is deemed as reasonable. If an individual is not going to
comply with the laws that everyone else is and that allow our society to
function — and instead is going to act against them — why should they have their interests
considered as equally as those who act in accordance with the rules?


However, although it may be fair for offenders
to lose the protection of rules, it is not established which rules they ought
to lose the protections of. It can be contemplated whether it is fair for
offenders to lose the protections of all of these rules. For example some
offenders may have only shown contempt for one or a few specific rules. Though
they have shown disregard for one rule, it does not mean that they do not
respect other rules of law in general. In fact, Casper6 found that
offenders believed that the law is worthy of respect.  The individual in question may not have shown
contempt for electoral rules, thus surely it is unfair to deprive the offender
of the right to vote. Easton backs this point in her article, as she notes that
disenfranchisement unfairly affects a large percentage of prisoners who are
denied a voice in the political process merely because of a moral judgement
that they are unworthy of the vote. Similarly, in Mandeep K. Dhami’s article, ‘Prisoner Disenfranchisement Policy: A Threat to Democracy?’7, Dhami notes
that although the prisoner may lose many freedoms this does not imply that they
should lose all of their civil rights.


Lippke argues that another reason for
disenfranchisement is the hopes of crime reduction, in addition to creating a
deterrent effect for prospective offenders. Lippke acknowledges that it is
credulous to think that adding disenfranchisement in adjunction to other
punishments including imprisonment would all of a sudden work as a symbol of
deterrence for offenders, merely because of the fact that most offenders are
unaware that disenfranchisement is a loss that they are to suffer up until the
point of being sentenced. It could even be argued that the loss of franchise is
one that might not be particularly significant due to the fact that the
offender is unlikely to have been an active participant in political affairs to
start with  because of their contempt to
the rules of law. However, it could be argued that in a more fair and
democratic society, all citizens would value the right to exercise the vote to
a greater extent. On other hand, whilst Lippke understands that labelling
disenfranchisement as a deterrent value comes at a stretch, this does not mean
that it does not serve a purpose of reducing crime even if only slightly. It
may be argued that offenders, especially those that have committed serious
crimes, should be disenfranchised due to the fact that they are likely to use
their votes in ways that do not serve the public interest in relation to crime
reduction. For example, they may vote for ideology or figures that would seek
to help criminal interests. These interests could include an array of things
from decriminalising many acts, reductions for certain crimes and less use of
imprisonment. If these interests were promoted, it would be reliable to say
that a large percentage of offenders would use their franchise to vote for this
in order to benefit themselves, which in turn would not serve public interest.
Decriminalising acts and reducing sentences for certain crimes would surely
also enhance the level of crime that takes place in the community and would
encourage offenders to commit crimes, as they know that they may not be
convicted at all or at the most will serve a shorter sentence than originally
put in place.


However, Lippke understands that this can be
argued against, as the argument put forward about prisoners voting for criminal
interests is entirely assumptive. Many offenders may conceive themselves as the
victims of the crime committed or may understand that what they have done is
wrong 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 it
comes to issues of criminal justice such as those mentioned above. However, we
cannot know for sure what offenders would vote for criminal interests and
because of this it would be extremely difficult to produce a fair process which
would distinguish those who would vote for these interests against those who
would not. Nonetheless, even if prisoners were given the right to vote it is
unlikely that their votes based on allowing criminal activity would prevail. If
the ideology and policies that a party is promoting are potentially harmful to
the public and support criminal activity, is it likely that these policies are
going to be unpopular with the public and so the party will not be voted in and
able to carry these out.  In fact, as
mentioned above, Casper8 found that offenders believed the law was
worthy of respect. Surely this shows that prisoners would not use their vote in
a way that demeans the law by choosing not to serve criminal interests? Easton
does not believe disfranchisement helps reduce crime or acts as a deterrence
for potential offenders. As mentioned above, Easton notes there is no link
between the removal of the right to vote and the prevention of crime so it
seems like an invalid reason to disenfranchise someone. In addition, Easton
also notes that the right to vote is treated rather causally by the public
given the low turnout rates of elections, so because of this it may be
insufficient 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 negative
thing. One example given is that it can be quite detrimental when it comes to
rehabilitation and enabling prisoners to socially reintegrate back into
society. An election reminds its citizens that we are all members of one
community whom are working together for the greater good, and so allowing a
prisoner to exercise the right to vote reminds them of this bond and may give
them a feeling of usefulness. Disenfranchising a prisoner instead creates
feelings of isolation and alienation from the rest of the community and
practically renames them as secondary citizens who are of a lesser status than
the rest of us. This is backed up by a survey conducted by Uggen and Manza10,
who found based on thirty-three offenders, that disenfranchisement was
stigmatising and socially isolating. Easton also agrees that excluding
prisoners from voting weakens social bonds which may in the long term produce
problems in relation to rehabilitation and re-offending. 


However, it can be argued that prisoners
violated the social contract and therefore should no longer be a part of it or
able to dictate the outcomes that will come about for the community. This
reflects 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 in
addition to helping execute these laws. If these laws are violated, the right
of participation of their own governance is taken away from the citizen. In
other words, if you go against the rules of law and essentially, your society
and what they agreed to, you are no longer allowed to vote. However, I feel as
though it is necessary for us to consider whether social exclusion can be a
major cause of crime. Denying prisoners the right to vote may be a further way
of isolating them from the community that we hope that they will return and
reintegrate with to become effective citizens that act in good faith.


The extent of difference of opinion in relation
to prisoner disenfranchisement is clear to see. However, I feel as though some
authors are more perceptive to the issue at hand and are able to balance the
possible consequences of allowing prisoners to vote with the advantages of
enfranchisement in general. This balancing of positives against negatives and
what would be the best outcome does create a meaningful disagreement as it
could essentially impact our society in addition to it being about an important
subject of rights, so all arguments should be carefully considered. Although
Easton produces many valid points in her article, it primarily focuses on a
view that prisoners should be allowed to vote whereas Lippke examines for and
against points more closely. In general, it seems as though points made for
disenfranchisement are based on the assumption that the denial of the right to
vote is simply a component of the punishment that is imposed. Whereas those in
favour of enfranchisement of prisoners base their arguments on the basis that
civil rights should be protected in all circumstances.


I feel as though Susan Easton’s stance on prisoner disenfranchisement
would improve the law. The law currently states that convicted prisoners (with
a few exceptions) are denied the right to vote in national or local elections.
With reference to the above issues it seems as though enfranchising prisoners
would be more beneficial and outweigh advantages of disenfranchisement, as well
as how it would be compatible with the charter of human rights. In the case of Hirst v UK, a majority of the European
Court of Human Rights held that the law regarding the UK ban on prisoner voting
within the Representation of the People Act 1983,11 was inconsistent
with Article 3 of Protocol 1 of the European Convention on Human Rights which
refers to the ‘free expression of
the people in the choice of the legislature’ rather than expressly to the right to vote.12


However, when considering implications of
adopting Easton’s approach the
following should be taken into account. It is likely that not at all prisoners
are to regain the right to vote and so in this case, a partial ban will be
enforced. A partial ban is not necessarily a bad thing and is already better
than what we have currently in regard to those supporting enfranchisement of
prisoners. A partial ban can also be seen to functioning in other jurisdictions
such as Iceland, where disenfranchisement only applies to prisoners that are
serving a sentence of four years. This would also require a less dramatic
change in the law. However, it could be argued that creating an eligibility
criteria would be difficult, as how do you create a fair process of
distinguishing what offenders should be allowed to vote? In response to this,
it could be argued that the crime hierarchy should be considered; those with
short custodial sentences of a certain duration should be given the right to
vote and offenders with large, life sentences that have committed crimes of
such a heinous nature should not be allowed. 
Another example of prisoners not being eligible could be those that are
serving sentences because of electoral crimes. Surely the punishment of being
disenfranchised would be relevant to those that committed a crime related to
voting? Another issue that should be considered is methods of voting for
prisoners and where prisoners should be permitted to cast their votes. It may
be practical and more convenient for polling stations to be set up within the
prison grounds. Postal voting could also be a method of use, however support
for illiterate prisoners should be considered as well as time frames of sending
the letters. Practicality issues should be tackled however, as it is unethical
to argue prisoners should not be allowed to vote merely because the process
would 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 to
be protected, there will always be disagreement amongst ourselves about which
rights should be protected. This is because of questions such as what it means
to protect a particular right and what happens if two rights conflict with one