Bartlett's Bizarre Bazaar

After yesterday’s laudable judgement of the European Court of Human Rights I thought that it would be appropriate for me to revive a column that I wrote for the website Moodspins in May this year.

*

No, this column will not be about the victory of Robert Mugabe’s ZANU-PF in the recent elections in Zimbabwe. Nor will it be about the “massive, systematic and organised fraud” that returned six Labour councillors during last year’s local elections in Birmingham. Nor will it be about Dame Shirley Porter and her gerrymandering and continued evasion of justice. Hell, it won’t even be about George W Bush, Jeb Bush, hanging chads or Diebold™ electronic voting machines. This column is about convicted criminals voting in elections, not running, competing in, and winning elections.

In America there has been, of course, some controversy over the right of convicted criminals to vote. In some states criminals permanently lose their rights to vote, while in others regaining the right to vote is costly and difficult to regain. Human Rights Watch had this to say in 2001:

“An estimated 3.9 million U.S. citizens were disenfranchised, including over one million who had fully completed their sentences. Black Americans were particularly hard hit by disenfranchisement laws: 13 percent of black men-1.4 million-were disenfranchised; in two states, almost one in three black men was unable to vote because of a felony conviction.”

An important point regarding the American situation, aside from the boast to be the world’s beacon of democracy – the Shining City on the Hill that disenfranchises a greater proportion of its population than any other industrialised democratic nation – is the classification of drug convictions in many American states. It seems to me to be somewhat suspicious that a conviction for marijuana will, in many states, be a felony conviction. Now, the severity of the sentence itself might be relatively humane, but the categorisation of the offence as a felony not only has the double whammy of making the offender almost unemployable and ineligible for welfare, but also removes the right of the offender to vote. This disproportionately effects the poor, and to argue this we need not make any link between poverty and crime in general, we need simply point out that the drugs that poor people have access to are illegal, while the wealthier people are able to effectively self-prescribe themselves painkillers, anti-depressants etc. in America’s for-profit marketised health-care system. But before we trail off the point and begin discussing the lunacy of drug laws in a nation of self-medicators we can say this; people convicted of crimes are denied the right to participate in a democratic political system, and the democratic political system determines what acts are criminal, and which demand disenfranchisement. Before anyone argues that as the decision was taken democratically then the result of that decision is democracy, may I point out that this is the babble of an electorophile. Even if an overwhelming majority vote to do away with democracy, what we then have is patently not democracy. And disenfranchisement is the reduction of democracy, and the case for such a policy must be well-reasoned, not simply the maintenance of a retributive tradition – or indeed, insidious racism.

But let us bring the argument closer to home, and discuss the situation with regards to UK elections, given that the general election is this Thursday. The Liberal Democrats have suggested that prisoners should be allowed to vote. The Liberal Democrats are supporting a campaign coordinated by the Prison Reform Trust titled ‘Barred from Voting’ (see the pun – you always need a pun), a campaign backed by politicians drawn from all three of the major political parties. Nevertheless, both Labour and the Conservatives have used Charles Kennedy’s support of the campaign as evidence that he, and the Liberal Democrats (conveniently ignoring the cross-party support this campaign has received) is soft on crime. This is, I am convinced, utter nonsense. This conviction (see) springs from three lines of argument – though I have no doubt that there are others that will occur to me moments after I post this piece.

First is the argument of rationality and responsibility for behaviour: for a democracy to disenfranchise members of its voting population an overwhelmingly persuasive argument in needed. The franchise should be extended to all those capable of making a reasoned decision. Given that criminals are found guilty on the basis that they are rational actors – not children or the insane; we no longer submit inanimate objects to trial either – then the argument that they are inherently unable to democratically express their will must exist with the corollary argument that these same criminals should not be in jail receiving punishment, but should rather be receiving the treatment suitable to non-rational, non-responsible persons. Of course, those seeking to deny prisoners the right to vote do not acknowledge the necessary conclusion of their denial of prisoners voting rights. Because their arguments are utter nonsense.

The second is the two part democratic demand: the first part of which simply demands that all members of a community take part in shaping the future political governance of that community. The second demand is somewhat more complex and specific to the case of the convicted criminal. What is categorised as criminal is a decision for the democratic process. It is decidedly anti-democratic to categorise people as criminals and then deny them the formal means with which express their democratic opinion on the law that categorised them so. We may think that we have reached a plateau of criminal law; that everything currently criminal ought forever stay so, and that everything currently legal will always be permitted. But I am sure that as much a people thinks this today, people also thought this when homosexuality was illegal, when heroin was legal, when abortion was illegal and when it was legal to hit your wife and legally impossible to rape her. We might not be able to see the flaws in our categorisation of acts, as indeed majorities could not during our recent history. That does not mean that we are right, and our very idea of democracy demands that we allow people we categorise as criminals and lock up in jail are given the right to argue for their freedom. Not only on the basis that they are innocent of the crime that they have been convicted of, a claim that can be dealt with by the criminal justice system. But on the basis that the act which they committed should not be categorised as criminal, or even that the criminal justice system we employ is not the system that ought to be employed. This argument does not ask us to believe that these people are right, but simply that, in a democracy, they should be allowed the freedom to make their arguments – and in a democracy the simplest, most fundamental form of expression is the vote.

Third is the argument of numbers: despite having a relatively high number of people in jail compared to our European neighbours, the proportion of our population in jail at any one time is pifflingly small. Even if prisoners were to vote in the constituency in which they serve their prison time they could not, in themselves, affect the overall result of any but the most marginal of marginal seats. But most prisoners would not want to vote for the MP of a constituency of which their only experience is the inside of a jail. They will want to vote in their home communities – the communities in which they have a future. Given that the presence of prisoners on the electoral roll would not make up a significant demographic shift in our democracy, the question must be asked – why not give these people a right considered to be among the most precious of those granted by our civilisation? Of course, the counter argument asks us to imagine a future in which crime is so rampant the great numbers of people disenfranchised would in fact make a difference to the outcome of our democracy (see the case of the USA and the black Floridians). In which case we say that such a shift in numbers should tell us that there is something seriously wrong with our society; perhaps the acts classified as being disenfranchising crimes are too inclusive, and thus the democracy is too exclusive to hold onto that title. Perhaps society has broken down to such an extent that crime is an unfocused replacement for revolution, and thus democracy has failed great numbers of the people. Or perhaps this is merely a fantasy that exists only in the head of right-wing science-fiction writers.

Eugene Debs was wrong on one thing – he was a better man than I am:

“Years ago I recognized my kinship with all living things, and I made up my mind that I was not one bit better than the meanest on the Earth. I said then and I say now, that while there is a lower class, I am in it; While there is a criminal element, I am of it; While there is a soul in prison, I am not free.” (1918)

Prisoner voting rights: world views [BBC]