Criminal Disenfranchisement in Democracy

Introduction

In a democracy, there is an emphasis on every individual having the right to be represented by elected members. While the right to vote is an important right for citizens, some individuals are prohibited from exercising this right. In England and Wales, there is a prohibition on serving prisoners from voting under section 3 of the Representation of the People Act 1983 (as amended by the Representation of the People Act 1985). Section 3 allows what is called as criminal disenfranchisement, which means criminals serving their offences are disenfranchised. The disparity is seen between serving criminals, who are barred from voting, and those who have already served their sentences, who are not disenfranchised. In other words, the criminal disenfranchisement provision only applies to serving prisoners, that is individuals convicted of a criminal offence and serving custodial sentence.

England and Wales are not alone in making criminal disenfranchisement laws. There are other countries in the world who have similar laws in place, despite being democracies. An example of a democracy, that allows criminal disenfranchisement is USA. On the other hand, there are other countries in the world, which do not bar serving convicts from voting in elections. For example, Finland allows all serving prisoners to vote irrespective of offence committed or length of sentence.

This research is being conducted for the purpose of creating an advise document for a government committee, which is considering allowing serving prisoners to vote. In order to create this advice document, this research will be conducted to explore and explain the current legal position on criminal disenfranchisement in England and Wales. In order to assess the situation in a wholesome and holistic manner, the research will evaluate the documented views of international bodies, including the European Court of Human Rights. This research also uses a comparative legal method to assess how other jurisdictions respond to the same issue. USA is selected because it allows criminal disenfranchisement and Finland is selected because it does not apply criminal disenfranchisement. These two opposing contexts will provide a greater insight into the appropriate legal position for England and Wales, based on the other two jurisdictions, their laws and the appraisal of their laws. Based on the comparison between these jurisdictions, the advantages and disadvantages of criminal disenfranchisement can be evaluated and a recommendation can be made to the committee as to whether criminal disenfranchisement should remain in full or part or be removed within England or Wales.

This research is limited to criminal disenfranchisement for serving prisoners. The prisoners that are considered in this research are all prisoners that are convicted for criminal offences who are denied right to vote under Section 3 of the Representation of the People Act 1983.

Research Questions

The research questions that are formulated for this research are:

1. How is criminal disenfranchisement applied through law and policy in England and Wales?

2. Is the application of criminal disenfranchisement appropriate in England and Wales or should the system come to an end?

3. How does the law and policy in USA and Finland on the same issue, provide lessons that can be used to make appropriate recommendations for the continuance or discontinuance of criminal disenfranchisement in England and Wales?

Literature Review

The practice of disenfranchising convicts goes back to the early times when in Ancient Greece, those who had committed crimes were given ‘civil death’, which meant that they were not allowed to participate in the citizenship rights. In the present times, there are many countries around the world, including England and Wales, that bar convicts from exercising their right to vote. The blanket ban on voting by convicts has come under sharp criticism from the European Court of Human Rights (ECtHR); as well as scholars.

One of the reasons why criminal disenfranchisement is criticised is that it is contrary to the principles of democratic engagement which is the right of all citizens of a state. It is argued that in a democratic nation, those who are subject to law must also have some say in the law making process, which is exercised through political engagement and voting at the time of election. The denial of voting rights to a certain section of the polity is seen as a compromising of the legitimacy of the law.

On the other hand, those who argue in support of criminal disenfranchisement emphasise that such laws are for the common good. It is argued that offender voting may be disruptive in nature and may affect the outcomes of the electoral process negatively. It is argued that voting by criminals may erode and damage the common good and as such those who are convicted of offences are natural candidates for exclusion from voting as they may vote against the rule of law and democracy. Such voters may be selfish and factional, and may lead to the diluting of the vote of law-abiding citizens, and compromising the moral authority of the electoral outcome. The problem with this argument is that there is no actual evidence that shows that offenders are unable to act rationally and autonomously in the same way as other citizens. Therefore, the denial of voting rights to the offenders seems to be based on a principle or reasoning that is not justified by evidence.

The second reason for criticism of criminal disenfranchisement practice or policy is that it further impacts human rights by and large having an impact on those who are already disadvantaged by a criminal justice system that shows some racial bias. Another criticism against this policy is that it relegates offenders to the status of second-class citizens, through denial of suffrage, and preventing them from expressing their political opinions through voting.

ECtHR has developed some jurisprudence with regard to criminal disenfranchisement. One of the important cases in this context is Hirst, which involved United Kingdom as a party. This case challenged the law on criminal disenfranchisement in England as being violating of right to vote as ensured under the European Convention of Human Rights (ECHR). The court did hold that the UK needs to show compatibility with Article 3 of the First Protocol. Finally, the Court found that the restriction of prisoners' voting rights violated this right. The government announced in December 2010 that they had to respond to the judgment in Hirst, for which it would have to introduce legislation to lift the blanket ban on voting. The government stated that there could be a change for introducing voting rights for those offenders who were sentenced to a custodial sentence of less than four years. However, the government did not take actual action on this because it was waiting for the Grand Chamber’s judgment in the case of Scoppola v Italy (No 3). The Grand Chamber confirmed the judgment in the case of Hirst (no 2), in which the court held that a general and automatic disenfranchisement (blanket ban) of all serving prisoners was incompatible with Article 3 of Protocol No 1.

An important point that was made in Hirst (and later accepted in Scoppola) was that member states should have a ‘margin of appreciation’ in how they regulate a ban on prisoners voting. Two recent judgments in 2014 and 2015 have again seen the ECtHR holding the English laws on criminal disenfranchisement as contrary to the ECHR provisions particularly Article 3 to Protocol No. 1 to the Convention.

In the United States, many state laws bar incarcerated criminals from voting, and many adults do not have the right to vote even after completing their sentences. The bar on voting for those who have been convicted of an offence punishable with imprisonment is indefinite and it has been critiqued as being enforced under what is called as “sweeping disenfranchisement policies.” The indefinite disenfranchisement in the United States, which is also called as “ex-offender,” “ex-felon,” or permanent disenfranchisement, is one of the aspects of the American democracy which sets it apart from other comparable democracies, including England, where criminal disenfranchisement is allowed but not in an indefinite sense as is seen in the United States. At the same time, there is a significant amount of variation in how criminal disenfranchisement is actually applied in different states of the United States. Some states disenfranchise some offenders during each stage of sentence and indefinitely after the completion of sentence. Kentucky and Iowa have lifetime ban on voting by those who have been convicted of criminal offences. Some states disenfranchise people during their incarceration, probation, and parole; while a few states bar vote during incarceration and parole, but not probation. Some of the states only bar voting during incarceration and not parole and probation. California automatically restores voting rights after a person is released from the prison. There are only two states do not strip voting rights from convicts, these being Vermont and Maine.

Due to the criminal disenfranchisement laws in the United States, there is a significant proportion of the American citizenry that is not permitted to exercise their voting rights during elections, and it is claimed that nearly 6 million Americans are not able to vote due to their disenfranchisement.

Contrasted with both United States and England and Wales, is Finland, which does not disenfranchise criminals or convicts, except in the case of those who are convicted of buying or selling votes or of corrupt practices in elections. Even so, the disenfranchisement is applicable only for a limited period of time. This presents a completely different outlook to disenfranchisement as compared to that in the United States and to some extent, in England and Wales. This also shows that it is possible for England and Wales to consider abolition of criminal disenfranchisement or limiting it to specific election related offences, as is the case in Finland.

Research Methodology

Legal research can be done in any of the following methods: doctrinal, problem research, policy research, and law reform legal research. Doctrinal research considers the law in a particular area and reveals the related trends to the law. Problem research focusses on highlighting the problems or issues related to the implementation of the law. Policy research relates to the critical appraisal of the existing policy, and this also involves the issues that are related to the implementation of the policy or the reasons why the policy deserves a relook and change. Lastly, law reform research is related to studying the law and proposing the required changes to the law in order to increase the effectiveness of the law.

Legal research can be conducted with any of the above mentioned methods, and it may involve any combination of these methods as well. There is a crucial difference between doctrinal and other methods, in that the former is not empirical, but the other methods involve empirical method. Empirical legal research may involve study of social angles that are seen to influence or be influenced by the implementation of the law.

This research will involve a combination of doctrinal and policy research method. The doctrinal research method is used because the major focus of the research is the law prohibiting the right to vote for those who are convicted and serving their sentences. Policy research is involved because one focus of this research is to suggest possible changes to the current law and policy in this area. In this context, doctrinal legal research is advantageous because it has the potential to facilitate the arriving at appropriate recommendations after a critical and interpretative evaluation of existing laws and policy.

As doctrinal method is used to inform the research method for this research, the vast majority of the sources that are to be used in this research are what are usually termed as ‘black-letter’ law. It is important note that the objective of doctrinal legal research is the identification and analysis of the factual material and legal issues involved in the issue of prohibition of voting for convicted persons. The research as such will focus on statutes and court judgments as the major sources for the data collection. Doctrinal research is interpretative, and this is advantageous for the critical appraisal of the current laws.

As this research involves a qualitative approach, there will be no formulation of a hypothesis; instead the researcher will formulate research questions that this research seeks to answer. Being doctrinal, both primary and secondary sources are relevant to data collection. The primary sources for this research will include legislations and case law. Secondary sources are books, journals and commentaries.

This research will also involve comparative research method as there are three jurisdictions that are being studied in this research. Comparative law research is used where more than one jurisdiction is studied and compared with each other. The method uses a system wherein data from different legal institutions is collected and tabulated. The researcher using comparative method also tabulates similarities and dissimilarities in how the different jurisdictions respond to the same issue through their laws and policies.

Comparative legal research method involves two tools: descriptive comparative law method and applied comparative law method. Descriptive comparative law method involves description of the variations between the laws of two or more countries, wherein the tabulation of the various regulatory mechanisms and the variations in these can be discussed. Applied comparative law method, provides an insight into legislative or regulatory framework that is based on the comparisons between the different jurisdictions. In this respect, the applied comparative method is used to build on the descriptive method to provide a regulatory or legislative framework.

Ethical Issues

The ethical issues that are involved in this research arise out of the doctrinal nature of the research as well as the use of secondary sources. These principal ethical issues are related to using credible secondary sources for the research as well as giving credit to the sources by duly referencing them wherever used. It is essential to give credit to the secondary sources used in the research. In order to provide only credible sources, only academic books, commentaries and articles from peer reviewed journals will be selected.

Bibliography

Books

Bryman A and Hardy M, The Handbook of Data Analysis (London : Sage Publications Inc 2009).

Dobinson I and Johns J, ‘Qualitative Legal Research’, in Mike McConville (ed.), Research Methods for Law (Edinburgh: Edinburgh University Press 2007).

Habermas J, Between Facts and Norms (Cambridge: The MIT Press 1996).

Hutchison T, ‘Doctrinal Research: researching the jury’ in Dawn Watkins and Mandy Burton (eds.), Research Methods in Law (Routledge 2017).

Gutteridge HC, Comparative law: an introduction to the comparative method of legal study and research. Vol. 1 (CUP Archive 2015).

Marshall P, ‘Disenfranchisement and political capacity’ in Anne Griffiths, Anna Mäki-Petäajä-Leinonen and Sanna Mustasaari (eds.), Subjectivity, Citizenship and Belonging in Law (Routledge 2016).

McConville M and Chui WH, ‘Introduction and Overview’, in Mike McConville (ed.), Research Methods for Law (Edinburgh University Press 2007).

Walliman N, Social Research Methods: The Essentials (London: Sage 2015).

Willis JW and Jost M, Foundations of Qualitative Research: Interpretive and Critical Approaches (Thousand Oaks: Sage 2007).

Journals

Ewald AC, ‘Civil death: The ideological paradox of criminal disenfranchisement law in the United States’ (2002) Wis. L. Rev. 1045.

Ewald AC, ‘An ‘agenda for demolition’: the fallacy and the danger of the ‘subversive voting’ argument for felony disenfranchisement’ (2004) 36 Columbia Human Rights Law Review 109.

Ginsburg RB, ‘A Decent Respect to the Opinions of [Human] kind”: The Value of a Comparative Perspective in Constitutional Adjudication’ (2005) 64(3) The Cambridge Law Journal 575.

Solomon A, ‘Democracy Unchained: Judicial Review of Felon Disenfranchisement Laws in America and an International Comparison’ (2016) Law School Student Scholarship 771.

Spears TD, ‘Civil death in a modern world: criminal disenfranchisement and the First Amendment’ (2014) 7 Crit 92.

Reports

Horne A and White I, Prisoners’ Voting Rights (The House of Commons Standard Note SN/PC/017, London: TSO 2015).