prisoner voting

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.

Read More: 

 

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. 

Press Release: HLS Statement on Equality and Human Rights Committee

Press Release: HLS welcomes the recommendation from the Equality and Human Rights Committee that Scotland's ban on prisoner voting should be removed in its entirety

Howard League Scotland welcomes today’s report from the Equality and Human Rights Committee that calls for all people in prison to be given the right to vote. The Committee state that given the importance of rehabilitation, human rights, and democracy, '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’

Howard League Scotland has consistently campaigned against the blanket ban on prisoner voting and we are delighted to see cross party support for change. We hope the Scottish Government and Scottish Parliament will give this report the positive and thoughtful consideration it deserves.

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. The existence of a universal franchise is an important measure of the strength of our democracy and social equality. Using that measure, Scotland’s democracy currently falls short. Of the 47 Council of Europe nations, Scotland is an outlier; having restrictions on prisoner voting we are in line only with the rest of the UK, Armenia, Bulgaria, Estonia and Russia. 

Since the devolution of electoral matters to Holyrood in the Scotland Act 2016, however, Scotland has gained the opportunity to be a leader in democratic and penal reform by becoming the first polity in the United Kingdom to extend the franchise to convicted prisoners, who are still being denied the vote across the UK, despite the European Court ruling that this is unlawful. We strongly encourage the Government and Parliament to embrace today’s report. By extending the vote to all prisoners, the Scottish Parliament can send a clear signal about its commitment to justice and fairness, and Scotland will make a bold statement on the international stage about the inclusive and democratic character of our society. 

 

ENDS

For further details contact: Louise@HowardLeague.Scot

About Howard League Scotland (HLS): Founded in 1979, HLS campaigns for penal reform in Scotland and promotes just responses to the causes and consequences of crime. HLS accepts no funding from central or local government so that we can campaign freely on key issues. HLS is a highly respected organisation and has been influential in changing government policy in Scotland. 

 

 

 

 

Committee Recommends ban on prisoner voting should be removed in its entirety

HLS welcomes the recommendation from the Equality and Human Rights Committee that Scotland's ban on prisoner voting should be removed in its entirety

Howard League Scotland welcomes today’s report from the Equality and Human Rights Committee that calls for all people in prison to be given the right to vote. The Committee state that given the importance of rehabilitation, human rights, and democracy, '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

Howard League Scotland has consistently campaigned against the blanket ban on prisoner voting and we are delighted to see cross party support for change. We hope the Scottish Government and Scottish Parliament will give this report the positive and thoughtful consideration it deserves.

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. The existence of a universal franchise is an important measure of the strength of our democracy and social equality. Using that measure, Scotland’s democracy currently falls short. Of the 47 Council of Europe nations, Scotland is an outlier; having restrictions on prisoner voting we are in line only with the rest of the UK, Armenia, Bulgaria, Estonia and Russia. 

Since the devolution of electoral matters to Holyrood in the Scotland Act 2016, however, Scotland has gained the opportunity to be a leader in democratic and penal reform by becoming the first polity in the United Kingdom to extend the franchise to convicted prisoners, who are still being denied the vote across the UK, despite the European Court ruling that this is unlawful. We strongly encourage the Government and Parliament to embrace today’s report. By extending the vote to all prisoners, the Scottish Parliament can send a clear signal about its commitment to justice and fairness, and Scotland will make a bold statement on the international stage about the inclusive and democratic character of our society. 

 

ENDS

For further details contact: Louise@HowardLeague.Scot

About Howard League Scotland (HLS): Founded in 1979, HLS campaigns for penal reform in Scotland and promotes just responses to the causes and consequences of crime. HLS accepts no funding from central or local government so that we can campaign freely on key issues. HLS is a highly respected organisation and has been influential in changing government policy in Scotland. To support us and the campaign for penal reform in Scotland please consider making a donation here via pay pal.

Achieving Social Justice in 2018: Prisoner Voting Rights

The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts.

  • South African Constitutional Court rules on prisoners' right to vote (1999)

 

Howard League Scotland calls on the government to take this occasion of newly devolved powers to extend the franchise to all prisoners. The issue of prisoners voting should be central to the Electoral Reform Consultation. Extending the vote to prisoners is not primarily about criminal justice, penal reform or rehabilitation. This is about human rights, creating universal franchise in Scotland, and ensuring democratic rights for all citizens. Ultimately, this is about improving the health of our democracy and building a better Scotland.

The centenary of women’s right to vote has been a powerful and timely reminder that citizenship is not automatic, even in democratic societies. We are reminded also that when people are reduced to second class citizenship, and thus socially excluded, it is all too often the result of government policy and legislation. Democracy is about inclusion, political engagement and civic participation. When we disenfranchise specific groups of people, however, we curtail their citizenship and socially marginalise them, but we also degrade the quality of the democracy across our entire society. 

In terms of measuring the strength of our democracy and social equality, universal franchise is seen as an important proxy. Using that measure, Scotland’s democracy is worryingly limited. Of the 47 Council of Europe nations, Scotland is an outlier; having restrictions on prisoner voting we are in line only with Westminster, Armenia, Bulgaria, Estonia and Russia. 

There is also something particularly punitive and arbitrary about denying prisoners the right to vote as opposed to all people with a conviction. This is most likely due to the belief that prison is for the most heinous criminals, but we know in fact large numbers of prisoners are not sentenced for serious or violent offences. In 2011-12, 28 per cent of shoplifting convictions, 54 per cent of housebreaking convictions, and 61 per cent of convictions for serious assault and attempted murder ended in a custodial sentence (Source: Criminal Proceedings in Scotland 2011-12). There is not a straightforward divide between the types of offences that attract imprisonment and those that do not. Therefore, HLS advocate that a custodial sentence by itself sets too low and arbitrary a threshold for the loss of such an important right as the right to vote.

Imprisonment is intended as the deprivation of liberty but in contemporary Scotland it also causes “civic death”, an archaic nineteenth century penal idea that should be resigned to history. Civic death was intended to strip a person not just of their freedom, but of many other basic rights, reducing them to a ‘non-person’. This sits at odds with the Scottish political commitment to reintegration and social justice.

Instead, by expanding the franchise the prison can be used to inculcate and encourage civic identity. This is particularly important given that the current voting ban also disproportionately impacts the most deprived and vulnerable. Prisoners tend to be the most marginalized members of our communities and by denying them a vote further ostracizes them from mainstream society. Strengthening people’s connection to society and motivating their sense of wider civic responsibility is an important aim of democracy, one that can be supported by giving prisoners the vote.

Since the devolution of electoral matters to Holyrood in the Scotland Act 2016, however, Scotland has gained the opportunity to be a leader and become the first polity in the United Kingdom to extend the franchise to convicted prisoners. England and Wales continue to deny prisoners the right to vote, despite the European Court ruling that it is unlawful. By extending the vote to all prisoners, the Scottish government can buck this trend, sending the clearest signal yet about its commitment to justice, fairness and inclusion.

HLS believes that the franchise is too limited in Scotland and calls on the Scottish government to remove this uncivilised and anti-democratic ban. Following the Irish model, voting should be extended to all prisoners, regardless of crime and sentence length and using a postal vote system. Prisons are public institutions, their character reflects the political and social values of society at large. However, from civil rights to eliminating the death penalty, history has shown us that governments can shape and encourage progressive public opinion by showing leadership on even the most divisive issues. By giving voting rights to prisoners, Scotland will make a bold statement on the international stage about the democratic character of our society. Prisoner voting is not a criminal justice matter, it is an electoral issue: in its current form it exposes a serious inequality that currently undermines Scottish democracy.

 

 

 

Prisoner Voting

That Scotland denied prisoners the right to vote during the independence referendum undermined the fabric of our democracy and the principle of universal suffrage. In this essay Albie Sachs and HLS President Andrew Coyle review the current ban on prisoner voting in Scotland, England and Wales. How can the Scottish Government make real its social justice mantra when it denied such a large population a right to be counted as a member of a democratic Scottish society during the independence referendum?

Read the essay here: The Right to Vote | Scottish Justice Matters | Vol 3 | Number 1 | March 2015

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