Prisoners and the Right to Vote

In the UK prisoners lose the right to vote whilst serving their sentence. In the US, except in Maine and Vermont, prisoners also lose this right and in some states this disenfranchisement continues after they have served their sentences. In this posting I want to examine whether prisoners should retain this right whilst serving their sentences. The vast majority of philosophical literature seems to suggest that they should. My intuitions suggest to me they should not. I hope my examination will either force me to challenge my intuitions or be able to justify them. Before proceeding I must make it clear I am only interested in whether prisoners should retain the right to vote and that I am not concerned whether the European Human Rights Court should play any part in UK legislation.

In order to look for an argument to support my intuitions I will firstly examine society’s aims when it sends people to prison. Firstly we send people to prison to protect ourselves by ensuring they commit no more crimes for the period of their sentence. This aim is achieved simply by sending offenders to prison. Depriving offenders of the right to vote does nothing to further this aim. Secondly we send offenders to prison in order to rehabilitate them. In the light of the re-offending figures for prisoners I’m not sure this aim is very realistic. However even if we accept this aim is realistic it is hard to see how the disenfranchisement of prisoners might further the aim. It is possible to allow prisoners to vote using a postal ballot. It follows the disenfranchisement of prisoners is not a necessary part of their imprisonment. It further follows if the disenfranchisement of prisoners is to play a meaningful part in the rehabilitation of prisoners that disenfranchisement must be justifiable by itself. Someone might argue an offender’s disenfranchisement might cause him to reconsider his attitude to life and so play some small part in his rehabilitation. I’m not convinced by such an argument, if I’m correct then it follows that depriving prisoners of the right to vote cannot be justified as part of their rehabilitation. Lastly and perhaps most importantly we send people to prison in order to punish them. It follows if we are to justify disenfranchisement as a punishment it also must be justifiable by itself. Most prisoners do not see disenfranchisement as a punishment. It follows for most prisoners disenfranchisement cannot be justified because it is a punishment. However this may not be true for all prisoners as I will argue later.

I have argued that for most prisoners do not see disenfranchisement as a punishment and hence disenfranchisement cannot be justified as such. However even if we accept the above as I do, it does not automatically follow if such prisoners are already disenfranchised that we have a reason to change the status quo. I have suggested that most prisoners do not see disenfranchisement as a punishment. It follows that most prisoners do not value the right to vote. If we don’t grant the right to vote to those prisoners who don’t value having this right then we do them no harm. It further follows that from a consequentialist point of view we have no reason to give most prisoners voting rights.

Someone might attempt to extend the above argument concerning valuing the right to vote to all prisoners. First she might point out voting is an essential element of any democratic society. She might then argue that prisoners don’t value society simply because they offend whereby damaging society. It follows that because prisoners don’t value society they don’t value the right to vote. It further follows if society does not grant prisoners the right to vote then it does them no harm as this right is not something they value. Lastly she might suggest prisoners see themselves as living in society rather than being part of society.

I am doubtful if in practice many prisoners actually value the right to vote. Nonetheless I would reject the above argument because I think it is possible that some prisoners do value this right even if they fail to respect society. However if some prisoners do value the right to vote then their valuation gives us a possible reason to disenfranchise them. If we deprive someone of something he values justly we may do so in order to punish him. It follows we have a possible justification to disenfranchise those prisoners who value the right to vote. To summarise I firstly argued that most prisoners do not value the right to vote and this means we no reason to change the status quo and give them this right. Secondly I argued that for those prisoners, who do value the right to vote, disenfranchisement might be justified as punishment.

Someone might object to my argument by pointing out it has been framed in consequentialist terms and the question of prisoner voting rights is a matter of fundamental human rights. I accept human beings have certain rights, see my posting of 07/10, but I am unhappy about using the term fundamental with regard to rights. Some rights are universal and apply to all human beings others are more restrictive, such as the rights of the members of a golf club. For instance I would argue we have a right not to be treated with unnecessary cruelty simply because we can feel pain but then animals must also have this right. Perhaps this right might be regarded as a universal right for all sentient creatures. In addition we have a right not to be treated as a means by others. Perhaps this right is universal for all potential autonomous creatures living among autonomous creatures. The domain of rights holders for this right is more restricted than for the domain of the right not to be treated with unnecessary cruelty. Lastly we have a right to vote because we are part of a democratic society. The domain of rights holders for the right to vote is further restricted. I would suggest it follows that someone’s right to vote is not a fundamental right based on him being a human being, but is based on him being part of a democratic society. Indeed the idea that our hunter gatherer ancestors had fundamental right to vote is nonsensical. Rights evolved as rights upholders’ ideas and their society changed and as a result different rights may have different origins. Because rights have different origins there is a wide variation in the domain of rights holders.

If we accept that the right to vote depends on us being part of democratic society then does this imply that in such a society prisoners should retain this right? It has been suggested above that prisoners see themselves as only living in rather than being part of a democratic society. I would further suggest prisoner’s behaviour shows that they do indeed see themselves as living in society rather than being part of society as they either intentionally damage society or fail to see their actions as damaging to society. It follows if prisoner’s only live in a society rather than being part of that society that they should not retain the right to vote. After all most foreigners living in a country are not usually considered as citizens and as a result do not have the right to vote even if they are law abiding and contribute to the general good by paying taxes.

I now want to consider some objections to the above. Firstly someone might suggest that many people who never offend see themselves as living in rather than being part of our society and yet still retain the right to vote. For instance people who live solely on benefits and contribute nothing to society. Nobody would seriously suggest we should disenfranchise such people. My objector might then argue if we treat these people differently from prisoners that we are acting unjustly. I would not accept my objector’s argument for two reasons. Firstly many people who contribute nothing to society financially contribute in other ways. Secondly I would argue all those who obey the law contribute to society simply by respecting the rights of others. However how much individuals contribute to society varies. Prisoners serving their sentences do not contribute to society in any other way and by offending have demonstrated that they do not respect the rights of others. My objector might now point most prisoners are not murderers or rapists but minor criminals many of whom simply snort, smoke and inject drugs in the hope of improving their happiness. I would respond by simply pointing out being inadequate may be the reason many prisoners live in society rather than being part of it and as a result gives us no reason to ensure they have the right to vote. Next my objector might suggest that giving prisoners the vote sends them a message. The message we send is that we see them as being part of society even if they don’t. But why should we send them such a message? My objector might respond by suggesting such a message can play a part in their rehabilitation by encouraging them to become part of society. I would respond by suggesting that this would be the wrong message and that disenfranchisement sends a better message that respect for the law is the minimum needed to be considered as part of society.

Lastly my objector might suggest that my argument should apply to all offenders rather than just those sent to prison. If we disenfranchise offenders who are sent to prison but not those offenders who are subject to different punishments such as fines then we are acting unjustly. I believe this objection carries some real weight. My argument depends on the assumption that prisoners see themselves as living in society rather than being part of it. My objector might now point out my assumption should apply to all offenders. She might argue that it follows drivers who are fined for speeding should also be disenfranchised for a period because they see themselves as living in rather than being part of society. Clearly most speeding drivers do see themselves as part of society rather than merely living in it. Perhaps then my assumption is false and some prisoners do see themselves as part of society rather than merely living in it. I accept the above objection and accept all offenders, except perhaps sociopaths, see themselves to some degree as part of society. However I would suggest there is a continuum in this degree ranging from sociopaths to speeders. I might then modify my argument and base it on the assumption that at below some point on this continuum offenders don’t see themselves as enough as part of society to be fully regarded as members of society. I suggest this point might be when offenders directly damage other members of society. The prime purpose of society is to protect its members against unwarranted damage and clearly offenders who directly damage other members of society do not respect society. I might then argue prisoners fall below this point and as a result should remain disenfranchised whilst most other offenders will be above this point and should not.

Does my modified argument provide some justification for my intuitions? I’m not sure and am now somewhat ambivalent about prisoner disenfranchisement. Perhaps I’m just using reflection to bolster my intuitions rather than possibly changing them, like Haidt (1) suggests most people do.

1.      Jonathan Haidt, 2012, The Rightous Mind, Allen Lane, chapter 2.