A response to Brooks on prisoner voting

In the UK all prisoners are disenfranchised.  This situation has been condemned by the European Court of Human Rights, which in Hirst objected to the blanket disenfranchisement of prisoners, and told the parliament to amend its laws.  Parliament has recently refused to do so.  In this recent post, Thom Brooks ably dismissed a number of the common objections to allowing prisoners to vote, and argued that we should seek to expand the franchise, allowing prisoners to vote.

While I agree that a blanket ban on prisoner voting is indefensible, for many of the reasons Brooks discusses, I wanted to examine some of the ways in which a more limited system of disenfranchisement could be defended, and also to touch on one further point against disenfranchisement, that provides another reason to worry about disenfranchising any prisoners at all.

One option is to limit disenfranchisement to specific criminals.  The recidivist criminals, who have repeatedly broken the law, might at some stage more clearly be characterisable as lacking respect for the rules of society, such that taking away one of the rights acccruing to citizens in good standing (voting) is a legitimate response.  Similarly, disenfranchising those convicted of serious crimes might be able to be seen as a legitimate component of punishment.  A person sentenced to life without parole clearly has less invested in the political structure of society than does a person who is sentenced to 6 months or a year in prison.  Other countries in the commonwealth provide ideas that the government might want to look into, with both Australia and New Zealand selectively disenfranchising criminals based on the length of their sentences.  As sentence length provides a good proxy for the seriousness of the crimes committed (albeit an imperfect one, as some account is taken of prior conduct when determining any given sentence), taking account of this would be sufficient to overcome the ECHR objection to current practice.

There are also some people who we might legitimately disenfranchise even if they are sentenced to only short terms in prison (or even not imprisoned at all).  These are the criminals whose actions directly undermine the institution of democracy, those who engage in electoral fraud or similar activities.  The connection of their crime to the practice of democracy gives us a better reason to disenfranchise them than we have for most criminals.  Something of this nature is practiced in New Zealand and in Germany, where disenfranchisement for particular electoral offences is an available punishment.

For any of the above cases, however, there is a concern.  The way our society is organised is such that certain identifiable groups within society are severely disadvantaged, such that criminal activity is a more viable option to them than it is for the average person in society.  For some of these groups, this difficulty is compounded by variations in state concern with their behaviour.  That is, the police exhibit (often unconscious) bias against particular identifiable groups.  So some people are in a position where criminal behaviour is the best available option for satisfying basic needs, and many of the people in this circumstance are also more likely to be targetted by police.  This concern has been articulated most clearly by Richard Lippke, in a number of books and articles on punishment.  It suggests that there is structural injustice in the state such that imposing particular punishments on some people is either unjustifiable or more difficult to justify.  Disenfranchisement seems like one of the punishments that is hardest to justify in these cases, as unlike imprisonment itself, it doesn’t produce clear public benefits.

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