Citizen convicts

Prisoners, politics and the vote

Cormac Behan

• Publisher: Manchester University Press
• Year: 2016
• ISBN:
  9781526101730
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Öffentliche Ordnung

The first comprehensive study of prisoners and the right to vote

1
Citizenship by civic virtue?

Introduction

The cases for and against voting rights for prisoners have been widely examined in academic literature and political discourse (see, for example, Abramsky, 2006; Campbell, 2007; Clegg et al., 2006; Easton, 2011; Ewald and Rottinghaus, 2009; Itzkowitz and Oldak, 1973; Kleinig and Murtagh, 2005; Manfredi, 1998; Manza and Uggen, 2006; Mauer, 2011; Plannic, 1987; Ramsay, 2013; Reiman, 2005). It is widely accepted that even in the most advanced liberal democracies there are limitations on the right to vote, depending on citizenship, age, mental competency and residency (Blais et al., 2001). What should these limitations be and who should decide on them? In the case of prisoners, should the withdrawal of the franchise be determined by a judge, decided by the executive with legislative approval or settled by the people? Should the denial of the vote be a collateral consequence of imprisonment or part of the penalty for breaking the law? Should prisoners be denied the right to vote at all? The arguments for and against the enfranchisement of prisoners yield a number of insights into the objectives of imprisonment, the desire for penal reform, the complexities of citizenship and what restrictions, if any, there should be on participation in a democratic polity.

This chapter will consider the cases for and against prisoner enfranchisement. It begins by examining the justification for denying prisoners the vote. It then considers the arguments in favour of allowing prisoners access to the franchise and concludes by making the case in favour of prisoner enfranchisement, arguing that it has both individual and community benefits.

The case for prisoner disenfranchisement

There are historical, philosophical, legal and political arguments for denying prisoners the right to vote. This section outlines the arguments for prisoner disenfranchisement. Based on the ancient concept of ‘civic death’, proponents argue that prisoners (and in some cases ex-prisoners) should be stripped of their rights of citizenship, especially voting. They suggest that those who have committed a crime have broken the social contract, put themselves outside the law voluntarily, and therefore should be denied the opportunity to decide who will make the law. Disenfranchisement should be used to remind prisoners that citizenship is a privilege and must be earned by civic virtue. Removing the right to vote from prisoners will deter others from committing a crime. Disenfranchisement, those in favour argue, expresses society's symbolic denunciation of criminal activity with moral condemnation to accompany the denial of liberty.

Civil death

Disenfranchisement has its roots in the ancient concept of ‘civil death’ based in Greek, Roman, Germanic and Anglo-Saxon legal traditions. 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 (Harvard Law Review (HLR), 1989: 1302; Itzkowitz and Oldak, 1973: 721). In Roman law, an individual pronounced ‘infamous’ was prohibited from serving in the army, appearing in court, making speeches, attending assemblies and voting (HLR, 1989: 1302). Being declared infamous could be for a criminal or immoral act. In later times, Germanic tribes used ‘outlawry’ 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 (Itzkowitz and Oldak, 1973: 722–3).

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; and finally, the attained was ‘dead in law’ – they could not bring suit or appear as a witness in court (Itzkowitz and Oldak, 1973: 724). The convicted could not perform any legal function, including voting (Ewald, 2002: 1060). Some aspects of civil death disappeared over time but others were embraced by many former British colonies and common law jurisdictions (Easton, 2006; Ewald, 2002). 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.

Social contract

Those who argue for disenfranchisement of prisoners and ex-prisoners use a social contractarian model with reference to Hobbes, Locke, Rousseau and Kant. In social contract theory, the stripping of any citizen of political rights is problematic. But for those who break the social contract there must be a sanction. Hobbes argued that whoever ‘breaketh his Covenant … cannot be received into any Society’ (cited in Plannic, 1987: 155). Locke believed that a murderer has ‘declared War against all Mankind, and therefore may be destroyed as a Lyon or Tyger’ (cited in Plannic, 1987: 156). Rousseau believed that ‘since no man has a natural authority over his fellow, and force creates no right, we must conclude that conventions form the basis of all legitimate authority over men’ (Rousseau, [1762] 1973: 185). However, there were exceptions, as ‘every malefactor by attacking social rights, becomes on forfeit a rebel and a traitor to his country; by violating its laws he ceases to be a member of it; he even makes war upon it’ (Rousseau, [1762] 1973: 209). For Kant, those who transgress the criminal law are unfit to be citizens. They have lost their citizenship by their ‘own criminal act, in which case, although he is allowed to stay alive, he is made into a mere tool of the will of someone else, either of the state or of another citizen’ (cited in Plannic, 1987: 157).

One modern proponent of felon and ex-felon disenfranchisement summed up the social contract argument: ‘To participate in self-government, you must be willing to obey the rule of law’, suggested Roger Clegg, president and general counsel of the Center for Equal Opportunity and former deputy assistant attorney general in the Reagan and Bush (senior) administrations. ‘Voting requires certain minimum, objective standards of trustworthiness, loyalty and responsibility, and those who have committed serious crimes against their fellow citizens don't meet those standards’ (Clegg, 1999). Society, therefore, has a right to decide who should be allowed to exercise the franchise. In the European Court of Human Rights (ECtHR), the United Kingdom government argued along these lines. In the case of Hirst v. UK (see Chapter 2), it made the case that disenfranchisement deprived:

those who had breached the basic rules of society of the right to have a say in the way such rules were made for the duration of their sentence. Convicted prisoners had breached the social contract and so could be regarded as (temporarily) forfeiting the right to take part in the government of the country. (Hirst v. UK (No. 2), 2005)

Another modern advocate of disenfranchisement, Peter Ramsay (2013: 11), argues that prisoners have ‘themselves repudiated their democratic citizenship rights by the implicit denial of citizenship entailed in their offence’. Disenfranchisement is proportionate because it is for the period of time an individual is in prison, presumably for an offence serious enough to warrant incarceration. He argues that allowing prisoners to vote is ‘faking democracy’ because while incarcerated they are not part of the process of ‘collective self-rule’ (2013: 11). Prisoners cannot exercise self-government because during their confinement they are entirely dependent on the executive. The democratic process is undermined by allowing to vote those who cannot contribute to collective self-government and would be ‘a contribution to counterfeiting democracy, extending the outward form of democratic government as a cover for the absence of the political substance of democracy – the self-government of the people’ (Ramsay, 2013: 11). Finally, he states that: ‘Prisoner disenfranchisement, by ensuring that the political playing field is formally equal and free of executive control, is one of the institutional forms of political equality’ (Ramsay, 2013: 14).

Purity of the ballot box

Those in favour of disenfranchisement regularly quote an 1884 case in the Alabama Supreme Court. This ruled that the ‘manifest purpose’ of disenfranchisement is:

to preserve the purity of the ballot box, which is the only sure foundation of republican liberty, and which needs protection against the invasion of corruption, just as much as that of ignorance, incapacity or tyranny … The presumption is, that one rendered infamous by conviction of felony, or other base offense indicative of great moral turpitude, is unfit for the privilege of suffrage, or to hold office, upon terms of equality with freemen who are clothed by the State with the toga of political citizenship. It is proper, therefore, that this class should be denied a right, the exercise of which might sometimes hazard the welfare of communities, if not that of the State itself. (Washington v. State, 1884)

The ballot box must remain ‘pure’ and should not be polluted by voters who have ‘waived their right to participate in those decisions’ argues Todd Gaziano (1999), director of the Center for Legal and Judicial Studies at the conservative think-tank, the Heritage Foundation. Allowing the vote to anyone who has shown such disregard for their fellow citizens and disrespect for the democratic process undermines the democratic polity for all. Citizens must remember that ‘voting is a right, but it is also a privilege’ (Clegg, 1999).

Proponents of disenfranchisement argue that those who have abided by the law are worthy to be given the right to decide who should become lawmakers because they are the only ones who value that privilege. One modern argument is ‘not that criminals should be disenfranchised because they fail to show the appropriate respect to the outcomes of democratic processes’ but rather that ‘the citizens of a legitimate democratic state have a broad collective right to order their affairs as they so choose’ (Altman, 2005: 264 and 266). The citizenry are entitled to disenfranchise convicts while imprisoned. ‘Such a decision may fall short of some ideal of political virtue, but it is a morally permissible choice for a ...

Table of contents

• Cover
• Title page
• Copyright
• Dedication
• List of figures and tables
• Table of legislation
• Table of cases
• Foreword
• Acknowledgements
• Introduction
• 1 Citizenship by civic virtue?
• 2 Prisoners and the politics of enfranchisement
• 3 Political change, penal continuity and prisoner enfranchisement
• 4 Voting and political engagement
• 5 Enfranchisement – the prisoner as citizen
• 6 Civic engagement and community participation
• 7 Imprisonment and citizenship
• Bibliography
• Index