Critical Issues in Scottish Penal Policy: Prisoner Voting Rights

Critical Issues in Scottish Penal Policy: Prisoner Voting Rights

This week HLS has invited a selected group of experts to reflect upon critical issues in Scottish penal policy. Today, Dr Cormac Behan looks at why Scotland should lift its total ban on prisoners' voting rights. Extending the vote to prisoners is not simply about criminal justice, penal reform or rehabilitation. This is about human rights, creating a universal franchise for all adults in Scotland, and ensuring democratic rights for all citizens

Why Scotland should recognise prisoners' voting rights 

In January 2018, I was invited to give evidence to the Scottish Parliament’s Equality and Human Rights Committee on prisoner voting. I presented the Committee with my research about prisoner voting internationally, with particular reference to the Republic of Ireland. In my evidence, I put forward the arguments in favour of allowing prisoners’ access to the franchise, which cover a range of issues from democracy to citizenship to reintegration. Research has indicated that there are strong arguments and evidence that prisoners’ maintaining a link with society outside, and in particular with their local community, can act as a spur towards reintegration. It might be one of the ‘hooks for change’ which scholars have identified are important in encouraging desistance from crime. To remove the right to vote – one of the most important elements of citizenship – adds to the dislocation from, and disconnection with, the world outside prison walls. It creates another layer of punishment beyond the denial of liberty, becomes an instrument of social exclusion, and can have significant longitudinal consequences in voting among ex-prisoners. To deny the right to vote not only undermines an individual’s citizenship, it can weaken the fabric of communities that have greater proportions of their citizens incarcerated. 

Citizens bring rights with them to prison set out in domestic law, various policy documents and international agreements. The European Court of Human Rights in the Hirstcase ruled 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’ (Hirst v United Kingdom (No. 2),2005). Unless there are substantive reasons otherwise, it can be argued that imprisonment should not remove the right to vote. Imprisonment is about the loss of liberty, not the loss of citizenship and voting is a cornerstone of citizenship in a modern democratic polity. The concept of civic death on which the denial of the right to vote to prisoners is predicated is an antiquated notion and considered an outdated idea in a modern democracy.

                

Some of those who oppose enfranchisement are concerned that allowing those who have broken the law to decide who should make the law undermines the democratic process for all. I presented evidence from my research in the Republic of Ireland that enfranchisement has not weakened the democratic process. During the debates in the Oireachtas (Irish parliament) in 2006 to enfranchise prisoners, arguments were advanced that this would strengthen the polity rather than damage it. 

Removing the right to vote not only undermines the social contract but damages the social compact on which community and citizenship is constructed. While prisoners may have broken the social contract and therefore, argue proponents of disenfranchisement, voluntarily put themselves outside the social order, others who have damaged the social compact are less likely to appear before the courts and subsequently end up in prison and therefore be denied the franchise. While it is argued that governments have an obligation to those who obey the law to punish those who break the law, this fails to locate the law in a wider social and political context.

The denial of the vote to a prisoner for the duration of a sentence is also related to the timing of an election. If an individual is serving a sentence on election day for a minor offence they may be denied the opportunity to exercise their franchise. An individual could serve a number of years in prison for a more serious offence and still have the opportunity to vote, if they were no longer incarcerated on election day. If voting is one of the most important elements of the social contract, then these considerations make denying it in this context somewhat arbitrary. It is imprisonment that will decide if a prisoner keeps or loses their right to vote rather than their receiving a conviction and many of those found guilty in the courts do not receive a custodial sentence. In the Hirstcase, two judges of the European Court of Human Rights observed that, ‘the reasons for handing down a custodial sentence may vary. A defendant’s age, health or family situation may result in his or her receiving a suspended sentence. Thus the same criminal offence and the same criminal character can lead to a prison sentence or to a suspended sentence’ (Hirst v. United Kingdom (No.2), 2005). They concluded that the reason the right to vote is denied ‘is the fact that the person is in prison’. In different jurisdictions, two individuals may be convicted of the same crime, and one may be sentenced to a term of imprisonment and not allowed to vote, while the other receives a non-custodial sentence and can exercise their franchise. 

The Equalities and Human Rights Committee took evidence from a range of witnesses and received numerous submissions. The Committee engaged with the complexities of the issue and were keen to hear about the experience of enfranchisement in other jurisdictions. In their report to parliament, the Committee concludedthat: 

 “144. Consequently, given the evidence we have heard, and the fact that many other countries have followed this approach with little in the way of problems (including a neighbouring country with similar legal and political traditions such as the Republic of Ireland) we think there is a strong argument that Scotland should aim for a higher standard than recently established at UK level and should therefore legislate to remove the ban on prisoner voting in its entirety.[1]

“145. We ask the Scottish Government to legislate to remove the ban on prisoner voting in its entirety. [2]

“146. In taking forward this recommendation, we ask the Scottish Government to consider a plurality of views on the issue and consult as wide a range of stakeholders as possible, including victims of crimes and the general public”.

There is currently a window of opportunity in Scotland to make these chnages happen. All members and supporters of  Howard League Scotland now have an opportunity to contribute to these consultations and make the Scottish government aware of your views on prisoner enfranchisement.

 

Author Information: Dr Cormac Behan is a Lecturer in Criminology in the Law Department at the University of Sheffield, prior to which he taught political education and history in Irish prisons for 14 years. He is a leading expert in prisoner voting and was recently invited to give oral evidence to the Equalities and Human Rights Committee of the Scottish Parliament.

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Endnotes:

[1]Jamie Greene MSP and Annie Wells MSP dissent from paragraph 144.

[2]Jamie Greene MSP and Annie Wells MSP dissent from paragraph 145. 

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