NEW RELEASES – Society is often confronted with particularly difficult challenges. One of them is concerned with the presence of criminals, thus prisons, thus forced restrictions of rights in our communities. Should inmates be allowed to exercise their civil and political rights? Specifically, should prisoners vote? This article will seek to explore the complexity of this issue taking into consideration the cases of both the European continent and the United States.
Prisoners or human beings?
Prisons have become a common social and political construct that societies have adopted to deal with the presence of people unfit to live with others. However, the solution to the problem of coping with unwanted members of society through imprisonment has led to many problems itself. The number of inmates is constantly growing, the facilities in which they are kept are often characterised by scarce conditions of living and the number of prisoners usually exceeds the capacity of the building in which they are kept.
In the U.S. there are roughly 1.6 million people incarcerated in federal and state prisons, in addition to 646,000 people locked up in more than 3,000 local jails throughout the U.S.1 These impressive numbers give an idea of the proportions of the problem: prisoners are human beings before than criminals and as such they enjoy, in theory, the same rights as the free members of society (apart from the one of freedom of movement.) Nevertheless, this is not always the case.2 As POLITICO reported, “We already know that prisoners are subject to abusive and inhumane conditions.”3 In 2011, a ruling held that overcrowded prisons in California were violating the Eight Amendment. Moreover, Justice Anthony Kennedy wrote that in California alone, an inmate “needlessly dies every six or seven days.”4 Thus, POLITICO argues that “We could improve prisons much more quickly and cheaply by creating a political constituency of prison voters.”5 The idea of civil and political rights granted to prisoners is, however, extremely problematic, and this article will explore the reasons why.
Civil and political rights
According to the OHCHR, “Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights.”6 Moreover, as the European Court of Human Rights (ECtHR) has stated that “Prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty.”7 Therefore, it is generally recognised that prisoners have the same human rights as the other members of society also when considering civil and political rights. It has in fact been specified by the ECtHR that automatic disenfranchisement is strictly forbidden.8 However, the possibility of not allowing inmates to vote or exercise other civil and political rights is not completely excluded, depending on the circumstances.
Article 3 of Protocol No. 1 enshrines the individual’s capacity to influence the composition of the law-making power. Civil and political rights are not automatically restricted for individuals who have, for instance, abused a public position or threatened to undermine the rule of law. However, should it be the case? Arguably, if a person has no respect for the established rules of conduct within a society and for the rule of law, this person does not deserve to actively participate in it and express his or her opinion. On the other side, suspending citizens’ rights while they are behind bars could be seen as a sort of “civil death”, a concept of Victorian origins imposed on convicted prisoners. Thus, how can governments and society at large recognise the need to deprive inmates of such fundamental rights? As Justice Earl Warren wrote in the 1958 case of Trop v. Dulles: “Citizenship is not a right that expires upon misbehavior.”9
“Each vote counts”
Particularly focusing on the civil and political right to vote now: when is it appropriate for citizens behind the bars to express their political will and when is it proportionate to deprive them of such fundamental right? What are the benefits of allowing individuals who have committed heinous crimes to vote?
Thierry Delvigne was a French prisoner who had been automatically banned from voting at the time of his conviction in 1988 under a law in force at the time which imposed a blanket ban on those sentenced to more than five years’ imprisonment. The judges of the European Court of Justice (ECJ) said that the ban to which “Delvigne was subject is proportionate […] in so far as it takes into account the nature and gravity of the criminal offence committed and the duration of the penalty.”10 However, this ruling by the ECJ was delivered 10 years after the ECtHR ruled “that a voting ban on a British prisoner, John Hirst, a convicted murderer, was unlawful.”11 Therefore, no clear answer is provided in Europe; nevertheless, the debate has been opened.
“In the United States, the debate about prison voting rights is virtually nonexistent.”12 Only two states, Maine and Vermont, allow the practice. Some States like Massachusetts and Utah have even revoked this right in the past two decades. Interestingly, this practice seems to affect specific demographics. The Sentencing Project has reported that “There is clear evidence that state felony disenfranchisement laws have a disparate impact on African-Americans and other minority groups.”13 Nationwide, 2.2 million African-Americans are disenfranchised on the basis of involvement with the criminal justice system. In spite of the lack of debate on the issue, Corey Brettschneider14, professor of Political Science at Brown University, has argued that it would incredibly important for prisoners to vote since this could improve their re-integration in the social structure at the end of their conviction, political participation could increase and the recognition of the democratic polity as a whole could be beneficial for the rest of society as well. Brettschneider finally adds: “Perhaps the most important reason to allow prisoner voting is that prisons, not just prisoners, would benefit. Prisoners need the vote to serve as the “natural defenders” of their own interests. But in defending their own interests, prisoners could substantially improve the prison system itself.”15
1 RABUY Bernadette and KOPF Daniel (2016) “Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time”, Prison Policy Initiative. Available at: https://www.prisonpolicy.org/reports/incomejails.html
2 HG.org Legal Resources, “Do Inmates Have Rights? If So, What Are They?” Available at: https://www.hg.org/article.asp?id=31517
3 BRETTSCHNEIDER Corey (2016) “Why Prisoners Deserve the Right to Vote”, POLITICO Magazine. Available at: http://www.politico.com/magazine/story/2016/06/prisoners-convicts-felons...
6 OHCHR, “Basic Principles for the Treatment of Prisoners”, Adopted and proclaimed by General Assembly resolution 45/111 of 14 December 1990. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/BasicPrinciplesTreatm...
7 European Court of Human Rights (2016) “Prisoners’ right to vote”, Press Unit, Strasbourg. Available at: http://www.echr.coe.int/Documents/FS_Prisoners_vote_ENG.pdf
9 BRETTSCHNEIDER, Op.Cit.
10 TRAVIS Alan (2015) “Voting ban on prisoners convicted of serious crimes is lawful, EU court rules”, the Guardian. Available at: https://www.theguardian.com/politics/2015/oct/06/uk-ban-on-prisoner-voti...
12 BRETTSCHNEIDER, Op.Cit.
13 The Sentencing Project, “Felony Disenfranchisement.” Available at: http://www.sentencingproject.org/publications/democracy-imprisoned-a-rev...
14 BRETTSCHNEIDER, Op.Cit.
MR – Research Assistant at CIPADH
BRETTSCHNEIDER Corey (2016) “Why Prisoners Deserve the Right to Vote”, POLITICO Magazine. Available at: http://www.politico.com/magazine/story/2016/06/prisoners-convicts-felons...
European Convention on Human Rights 1950. Available at: http://www.echr.coe.int/Documents/Convention_ENG.pdf
European Court of Human Rights (2016) “Prisoners’ right to vote”, Press Unit, Strasbourg. Available at: http://www.echr.coe.int/Documents/FS_Prisoners_vote_ENG.pdf
HG.org Legal Resources, “Do Inmates Have Rights? If So, What Are They?” Available at: https://www.hg.org/article.asp?id=31517
OHCHR, “Basic Principles for the Treatment of Prisoners”, Adopted and proclaimed by General Assembly resolution 45/111 of 14 December 1990. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/BasicPrinciplesTreatm...
OHCHR, “Human Rights and Prisons – A Pocketbook of International Standards for Prison Officials”, Professional Training Series No. Add. 3, United Nations, New York and Geneva, 2005. Available at: http://www.ohchr.org/Documents/Publications/training11Add3en.pdf
RABUY Bernadette and KOPF Daniel (2016) “Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time”, Prison Policy Initiative. Available at: https://www.prisonpolicy.org/reports/incomejails.html
The Sentencing Project, “Felony Disenfranchisement.” Available at: http://www.sentencingproject.org/publications/democracy-imprisoned-a-rev...
TRAVIS Alan (2015) “Voting ban on prisoners convicted of serious crimes is lawful, EU court rules”, the Guardian. Available at: https://www.theguardian.com/politics/2015/oct/06/uk-ban-on-prisoner-voti...
Trop v. Dulles (1958) 356 U.S. 86. Available at: https://www.law.cornell.edu/supremecourt/text/356/86