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Wednesday, February 09, 2011

Should murderers have the right to vote in prison?

The fact that I'm even thinking about this issue is a testament to the cognitive difference of living in the European Community for the past six months. Five years ago, the Grand Chamber of the European Court of Human Rights held in the case of HIRST v UK, Application No. 74025/01 (read the case online here) that the UK must revise its law banning all prisoners from voting in at least Parliamentary elections. Hirst, who was convicted of manslaughter and sentenced to a discretionary life sentence with a tariff of fifteen years (the minimum term prior to any possible parole, based on retributive and deterrent considerations), claimed among other things, that the voting ban violated his rights under Article 3 of Protocol No. 1 of the European Convention of Human Rights, which provides 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."
The Court declined to specify which prisoners had to be able to vote, noting that in this area, the "margin of appreciation is wide" within which courts should defer to legislative judgments about the purposes of punishment and the conduct of elections; but they clearly implied that under Article 3 of Protocol No. 1, some prisoner must be given the right to vote.

In November, a chamber (roughly the equivalent of appellate court panels in the US) of the European Court of Human Rights took notice of the fact that five years and at least one national election had gone by since the decision in HIRST and the UK had still not revised its law. IN, CASE OF GREENS and M.T. v. THE UNITED KINGDOM, Applications nos. 60041/08 and 60054/08 (read it here) the Court ordered the UK to come up with a new law within six months, and ordered them to pay 5000 Euros in expenses to prisoners with claims currently before the court (with the strong implication that a similar payment would be required for any future litigation, perhaps multiplied by thousands of prisoners who could be expected to bring cases should the government continue to ignore the court).

As noted in yesterday's post, there is something of a backbench rebellion going on among both Tory and Labour MPs who would like to snarl at the European Court and denounce it for interfering with sovereignty. The government, however, is clearly moving rapidly toward a new law (the old one dates back to 1870). This morning on BBC4 radio, Justice Secretary Ken Clarke indicated as much (listen to it here, note there is along interlude on the finances of the Supreme Court before they get to the voting issue), and while he would not say where the government wants to draw the line, he did trot out the clear cases of those who would be excluded, murderers and rapists.

While the European Court may well approve not only the exclusion of murderers and rapists, but lots of other persons sent to prison for significant sentences (after all they did talk about "the margin of appreciation" being "wide" for the political choice element), there are some good reasons why a government less committed to populist punitiveness might well recognize a duty to let even murderers vote and an outside chance the Court will make them do it.

First consider that the Court declined in HIRST itself to question the legitimacy of the governments goal of punishing offenders through denying them the vote (choosing instead to focus on proportionality). But they may have to reach this issue in the next case. Is denying a murderer the right to vote for Parliament a legitimate form of punishment? In HIRST, the Grand Chamber did say this in paragraph 69 of its judgment:

In this case, the Court would begin by underlining 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 detention expressly falls within the scope of Article 5 of the Convention.

This expresses a theme elaborated even more by the The European Prison Rules (Recommendation No. R (87) 3 of the Committee of Ministers of the Council of Europe) which states in paragraph 64:

Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.

While the recommendations of the Committee of Ministers are not binding on the Court, they have been influential. The essence of the argument is that, at least in Europe, punishment is limited to deprivation of liberty (and all that may be administratively necessary to accomplish that). Moreover, if there is to be a surplus beyond deprivation of liberty (the express argument of the UK government in HIRST), it surely cannot be one focused on status degradation, which offends the dignity principle running through much of the binding treaty law to which the UK is a signatory. For example, Article 10 International Covenant of Civil and Political Rights provides:

"1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." (emphasis added)

I am taken, for the moment, with an analogy suggested in the Grand Chamber's judgment in HIRST to a prisoner's family status. In paragraph 69, the Court articulated examples of rights that prisoners do not lose by being imprisoned, and the very first one that they mention, other than the right not to be abused, is that  "they continue to enjoy the right to respect for family life."

Should a murderer have their parental rights and duties terminated by conviction and imprisonment (beyond those duties made impossible by loss of liberty and penal segregation)? Is not being a parent just as honorable a status in our societies as being a voter? In fact, both mix duty and honor.

Beyond punishment, the UK government could claim that banning murderers and rapists is essential to preserve the integrity of the electoral process. Even assuming that murderers and rapists would vote their class interest in weakening criminal laws and law enforcement, what plausible argument is there that any competitive candidate standing for MP would seek to attract such votes by advertising their desire to be as lenient as possible with murderers and rapists, or weakening law enforcement to assure that fewer of them would get caught?

Perhaps there is an argument that if all prisoners were allowed to vote in the Parliamentary constituency where they are currently serving time they could swing a close election. But the government has a easy solution to that problem. It can allow prisoners to vote in the constituency in which they lived prior to incarceration (which is more likely to be their relevant community in any event). Even under conditions of mass incarceration (and just between the two cases, the numbers of potentially effected prisoners in the UK had grown by tens of thousands), there is no plausible scenario under which prisoner votes would alter the policy positions taken by candidates on law and justice issues.

On the other side there are compelling arguments that voting is an example of pro-social, non-self interested behavior that should be an integral part of the rehabilitative process which the UK remains committed to (at least in theory).

cross posted at Governing through Crime

Posted by Jonathan Simon on February 9, 2011 at 03:25 PM in Criminal Law, Jonathan Simon, Law and Politics | Permalink


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As to the social contract, yes, prisoners retain some rights against the state, but the flabby concept of "dignity" doesn't seem to provide a good theoretical base for determining the content of those rights. Does respecting prisoners' dignity entitle them to receive pornography? To have better meals than spam-in-a-roll? To have single-accommodation cells? Moreover, if a proper respect for individual dignity entails the right to vote, every individual in society must necessarily be entitled to dignity and therefore have the right to vote. In that case, the disenfranchisement of minors, aliens, and the mentally-incompetent is invalid too. In short, invoking dignity to ascertain the rights of prisoners (or, more generally, the scope of the right to vote) is just a makeweight that obscures the real motivations and reasons for concluding that prisoners have a particular right against the state.

You are undoubtedly right that there are cultural differences between Americans and Europeans, but I don't think respect for the right to vote is among them. Given the long fight for universal enfranchisement in this country, I don't think Americans value the right to vote any less than Europeans. Given our democratic pedigree and Europe's relatively recent adoption of democracy, however, our judges may have a greater respect for democracy and democratically-adopted policies than the judges on the European Court of Human Rights.

Finally, as to electoral integrity, I think you need to distinguish between different public offices. Different offices pose different risks. Admittedly, it is unlikely that prisoners will take much interest in or exercise much influence with federal representatives (or UK MOPs). The same cannot be said for local sheriffs, district attorneys, and state judges, most of whom are elected in the U.S. and whose elections often draw low turnout among the general public, thereby setting the stage for prisoners to tip a close election in favor of the more lenient candidate.

Posted by: Norman Williams | Feb 10, 2011 12:38:29 PM

On the social contract point it would be helpful to understand the underlying forfeiture rules. After all, in violating the law the criminal offender might be taken to have forfeited his or her right to social defense against victimization by other inmates or prison officers, but presumably we would not welcome systematic tolerance of the rape of prisoners as a proper response to their crimes. It seems to me that what is driving the Europeans is the idea of dignity which protects rights independently of any social contract. While it might seem strange to Americans to include the right to vote among the key dignitary rights of prisoners it may be because suffrage (as to white males) was granted quite early in the American context, while it was a long hard fought battle for non-property owning commoners to win this right in Europe (see James Whitman's great book, Harsh Justice, for an argument that much about the differences between Europe and the US on punishment can be attributed to the absence of an aristocracy in the US.

On the electoral integrity point, I think we should differentiate between when prisoner votes might swing an election, which could surely happen (consider Florida in 2000) and when prisoner votes might change the law enforcement policy positions of candidates. If we object to the first scenario, it seems to me it must be on the ground we do not consider prisoners to deserve equal standing in the polity (which is the heart of the European Court of Human Rights objection to the UK's blanket ban). The second scenario would be more troubling if it were likely, but again I cannot imagine a successful candidate seeking prisoner votes by campaigning on a leniency platform without alienating far more voters than they could possibly hope to attract.

Posted by: Jonathan Simon | Feb 10, 2011 6:51:59 AM

"Perhaps there is an argument that if all prisoners were allowed to vote in the Parliamentary constituency where they are currently serving time they could swing a close election."
Please take into account that in continental Europe most parliaments are elected on the basis of party lists and proportional representation. While the numbers of people in prison is way lower than in the US, if they together with their families vote for a party that is more lenient (usually the social democrats as opposed to the "law and order" right wing parties), they can make a difference in the number of seats a party receives overall ...

"Prisoners have violated the social contract, and therefore they have forfeited the privileges of political community, such as voting."
Why? When a society like the US is constructed in a way that the top 1% own most of the wealth and more than 1,3% of the US population is sent to prison (as opposed to 0,3% (?) in Europe)*, couldn't one just as well conclude that the social contract needs to change and the most underpriviledged should have a say in that ... ?

*this screws up any comparison of unemployment numbers, too, btw ...

Posted by: Positroll | Feb 10, 2011 6:06:11 AM

I think "prisoners" and "murderers" aren't the same thing so the reply is arguably off. A short stint for a drug crime is different than killing someone. The former also has a much greater de facto discrimination problem in this country, a factor that has special importance.

I'd appreciate having a chance to see Justice Sotomayor provide insight, particularly after reading her dissenting opinion in a case that examined just that issue.

Posted by: Joe | Feb 9, 2011 8:01:44 PM

Jonathan, it is a fascinating case, and it adds an interesting comparative perspective on this issue. It strikes me, however, that the ban on prisoners voting can be justified in social contractarian terms. Prisoners have violated the social contract, and therefore they have forfeited the privileges of political community, such as voting. Until they become members in good standing again, so to speak, they have no right to participate in the affairs of state as such. Punishment and electoral integrity are, at best, secondary justifications for their disenfranchisement. Moreover, I am not as certain as you are that enfranchising prisoners, even in their pre-incarceration districts, would not have outcome determinative effects in some races. One can easily imagine prisoners casting the deciding votes at the margin in a close race, and, therefore, I think it is reasonable to believe that some representatives might feel overly indebted to such prisoners. Surely it is legitimate (and far from merely being spiteful punishment) for a political community to seek to protect itself from that situation. That was at least Judge Friendly's concern when he addressed this issue.

Posted by: Norman Williams | Feb 9, 2011 7:50:10 PM

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