A DEMOCRATIC DILEMMA: PRISONER DISENFRANCHISEMENT IN AUSTRALIA

Word count: 1,866 (not including question reproduction, citations and bibliography)

Question 7

All prisoners jailed for an offence forfeit their entitlement to vote in federal elections. How reasonable is this stance, when one of the tenets of our democracy is universal suffrage? Does the practice of other democracies offer useful guidance?

IIntroduction

It is an essential component of representative democracy that all citizens should have the right to vote.[1] However, in many present-day democracies universal suffrage has not been realised.  ‘Internationally, millions of prisoners (and ex-offenders in some nations) are disenfranchised.’[2] A democratic government which upholds iniquitous electoral laws and deprives a prisoner of the right to vote inevitably undermines the legitimacy of its own political orientation. In this essay, I argue that excluding prisoners from the civic process can engender discrimination and unfairness, both of which are characteristics contradictory to democratic ideals. By contrast, enfranchisement of prisoners can encourage rehabilitation and societal reintegration, as well as have a real influence on the political climate of a nation.[3] I also look at the practices of other democracies for potential guidance, before considering arguments offered on both sides of this topic. In conclusion, inferences will be drawn as to whether Australia’s disenfranchisement of convicted criminals is reasonable in a system of government which is founded on the sovereignty of its citizenry.

IIThe Franchise in Australia

Australia has long taken pleasure in its egalitarian past and the quality of its electoral administration, in particular its non-partisan character.[4] Nevertheless, regardless of Australia's progress towards electoral democracy and its reputation as a pioneer in terms of enfranchisement, our nation’s government policy has had to improve considerably for most sectors of the population to achieve equal voting rights.

Subsequent to the 1901 election, there was an official review of the various State electoral laws, and in 1902 the federal parliament enacted the Commonwealth Franchise Act.[5] This legislation facilitated women’s suffrage and granted all Australian white women the right to stand for parliament in federal elections and exercise their vote at a federal level. Despite that, the most significant restriction on universal adult suffrage was that which was based on an ostensible ethnic prejudice.[6] Under the Franchise Act, ‘aboriginal natives of Australia, Asia, Africa and the islands of the Pacific’[7] were excluded from voting. In 1962, as a result of pressure to recognise Aboriginals' rights as full citizens, this restriction was abolished through the amendment of the Commonwealth Electoral Act.[8] Thus, the federal ballot has now been expanded to include all women and Indigenous people.

This progress towards a more comprehensive and unbiased franchise, however, was not extended to all segments of society. To date, a form of political injustice remains, for some, in consequence of conviction. [9]  ‘Until recently, all Australian prisoners serving sentences of less than three years could vote in federal elections.’[10] Now, with the introduction of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act in the 2004 electoral amendments, [11] any person under a sentence of imprisonment is denied the right to vote. Because of this disqualification, approximately 20,000 convicted persons are divested of the franchise.[12]

IIIInternational Status of Prisoner Suffrage

Prisoner disenfranchisement laws have an extensive history and an ongoing effect on electoral politics.[13] Internationally, the obstacles to full polity membership faced by convicted persons are considerable and wide-ranging.[14] In the following, I provide a general summary of the policy on prisoner voting rights in the United States of America and discuss some of the recent reforms of disenfranchisement policy in Canada and the United Kingdom.

In the United States, an increasing number of citizens are unable to vote because of the secondary consequences associated with felony convictions: ‘[o]ffenders may lose the right to vote, to serve on a jury, or to hold public office, among other “civil disabilities” that may continue long after a criminal sentence has been served.’[15] In forty-eight states and the District of Columbia, electoral laws disenfranchise all convicted adults in prison.[16] In addition, thirty-five states deny the vote to felons on parole, thirty exclude felony probationers, and two states permanently ban ex-offenders from voting.[17] Although criminal disenfranchisement provisions should be of concern in any democratic nation, the extent of their impact in the United States is incomparable: it has been estimated that 5.3 million U.S. citizens are currently disenfranchised due to a past or current felony conviction.[18] The result of so many people being disenfranchised is an unavoidable consequence of harsh policies and has alienated the United States from other democratic nations with respect to national criminal justice interests.

While many democracies practise some form of disenfranchisement concerning criminal convictions, the severity of United States disenfranchisement laws stands as an anomaly against international standards, both substantively and procedurally.[19] For example, in Sauvé v Canada,[20] the Canadian Supreme Court held that the right to vote was essential to democratic rule and barring prisoners from voting is paradoxical to democratic principles.[21] In turn, the court ascertained that the Canada Elections Act of 1985,[22] which denied the suffrage of convicted persons imprisoned for a sentence of two years or more, was a violation of Articles 1 and 3 of the Canadian Charter of Rights and Freedoms. Therefore, despite the preceding similarities between the Canadian and United States legal systems, courts in both countries have reached diametrically opposed verdicts, with Canadian courts upholding less severe restrictions on prisoners’ right to vote.[23]

The judgment by the European Court of Human Rights in Hirst v United Kingdom[24] in March 2004 also challenged the legitimacy of the prohibition on prisoners’ voting rights. The United Kingdom government had claimed that disenfranchisement was intended to constitute a deterrent to crime and penalise offenders, and stimulate civic responsibility and respect for the rule of law.[25] The European Court adopted the reasoning of the majority in the Sauvé v Canada[26] case and held that disenfranchisement of criminal offenders is a contravention of Article 3 of Protocol 1 of the European Convention on Human Rights, which states that ‘[t]he High Contracting Parties undertake to hold free elections … under conditions which will ensure the free expression of the opinion of the people.’[27] Reflecting this change in policy, prisoners in the United Kingdom, as part of their citizenship, are now entitled to exercise their right to vote.

IVThe Disenfranchisement Debate

As the prison populace continues to rise throughout western society, the disenfranchisement of inmates has developed into an increasingly relevant issue, particularly in view of new human rights discourses. Generally speaking, there are two movements surrounding the issue of reform to the law regulating disenfranchisement. On the one hand, suffragists promote an inclusive approach to prisoner involvement in the political process and call for the abolition of voting disentitlements.[28] On the other hand, anti-suffragists support an exclusive or restrictive doctrine and believe disqualification develops civic virtue in the citizenry.[29] Because the recording of the conviction itself is intended to exemplify the social stigma associated with sentencing, questions arise as to why a collateral legal consequence, such as disenfranchisement, is necessary.[30] To take a closer look at this issue, I will now contrast the arguments offered on either side of the ideological divide which seems to exist over the framework of current electoral laws and the nature of penal sanctions.

ADerogation from the Right to Vote: Arguments for and Against

With the right of citizens to vote now being recognised as a defining attribute of democracy, prisoner advocacy groups argue that democratic governance in today’s society entails universal and equal suffrage for all citizens.[31] Departures from the norm of full suffrage require a unique and circumspect analysis, and should only be accepted in extraordinary circumstances.[32]

Today, several exclusions have become embedded in the laws of most western democracies: these exceptions relate to insanity, lack of citizenship, non-residency, and to an extent, incarceration. Taking these categories into consideration, it becomes apparent that there is no correlation between criminal conviction and the other paradigmatic bases for debarment, which, to some extent, impair the voter’s ability to exercise his or her voting right.[33] In fact, it appears that such disenfranchisement laws have no discernible legitimate function in ensuring a democratically chosen government and contradict the fundamental purpose of having a democratic system: the mechanism of popular election.

The disenfranchisement of prisoners from this process connotes that the right to take part in an election is a privilege which can be withdrawn as punishment rather than a responsibility or a right.[34] In Australia, the fact that executing your vote is compulsory indicates the contrary. As such, adversaries of prisoners’ suffrage argue that the elimination of prisoners from this responsibility and this right is unjustified and undemocratic.[35]

In a conservative variant of this argument, the existence of criminals within the franchise potentially diminishes confidence in the electorate by diluting the votes of law abiding citizens. It maintains the stigmatised attitude that the ‘purity of the ballot box’[36] is undermined by the participation of prisoners in the vote. Nonetheless, questions should be asked about the basic fairness of disenfranchisement laws and their implications for the reintegration of prisoners back into society.[37] Denying essential citizenship rights to prisoners undermines their ability to engage with the political system and serves to amplify the social distance between the convicted person and the community, and may thereby increase their risk of recidivism.[38]

Anti-suffragists tend to argue that convicted persons have exhibited a propensity to breach the social contract and, as a result, they should be denied the freedoms and privileges enjoyed by citizens as a disincentive to crime.[39] However, the concept of retribution as the purpose of the penal system is ‘an archaic remnant from the ancient notion of civil death’[40] and has since been superseded. Instead, rehabilitation and public safety are purported to be the current objectives of incarceration, and any laws which are oblivious to such principles can be seen as outdated and in antithesis to contemporary standards.

VConclusion

Principles generally accepted as the foundation of democracy are those of political equality and popular control of government. The franchise is the feature that epitomises democracy, and at present, ‘the franchise is generally conceived as the universal right of all adults to a single, equal vote’.[41] The proscription against voting in fact encumbers the rehabilitation of the prisoner as a law abiding member of the community and lowers the effectiveness of the process that conceives and enforces the law.

Although prisoners’ voting rights is not a resolved matter in many modern democracies, there is, internationally, a developing liberalisation of anti-democratic restraints on absolute suffrage.[42] Voting by imprisoned offenders works successfully in the United Kingdom and Canada. In Australia, penal administration has been punitive, ill-considered and ultimately a misadventure due to self-serving political agendas.[43] The United Kingdom and Canadian democratic systems serve to provide a valuable framework for legislative analysis and design. They accomplish this through a recognised and conventional value system, centralising attention on human dignity and personhood, and protecting core principles of effectual policy, including empowerment, participation, equality and accountability.

Having regard to international trends that demonstrate the value of social policy that is educated by and compatible with advanced democratic values, legislatures should consider alternative policies that will better achieve correctional objectives without injury to basic civil rights.[44] The disenfranchisement of prisoners is undeniably inconsistent with democratic norms and standards, and is an unreasonable limit in a free and democratic society. Depriving a sector of the population the right to vote threatens the political legitimacy of a democracy.

BIBLIOGRAPHY

Articles/Books/Reports:

• Behrens, Angela, Manza, Jeff and Uggen, Christopher, ‘Criminal Disenfranchisement’ (2005) 1 Annual Review of Law and Social Science 307, 319.

• Brooks, Clem, Manza, Jeff and Uggen, Christopher “Civil Death” or Civil Rights? Public Attitudes Towards Felon Disenfranchisement in the United States: Research Report on American Attitudes towards disenfranchisement (2003) 6.

• Dhami, Mandeep, ‘Prisoner Disenfranchisement Policy: A Threat to Democracy?’ (2005) 5(1) Analyses of Social Issues and Public Policy 235, 235.

• Human Rights Advocates, Report on Juvenile Criminal Sentences, the Right to Vote, the Right to Life on the Border and Freedom of Association in the United States: A Shadow Report (2006) at 12.   

• Human Rights Watch and the Sentencing Project, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States, Report No G1003 (1998) at 2.

• Manfredi, Christopher, ‘Judicial Review and Criminal Disenfranchisement in the United States and Canada’ (1998) 60(2) Review of Politics 277, 277.

• Manza, Jeff, Thompson, Melissa and Uggen, Christopher ‘Citizenship, Democracy, and the Civic Reintegration of Criminal Offenders’ (2006) Annals of the American Academy 281, 283.

• Orr, Graeme, ‘Ballotless and Behind Bars: The Denial of the Franchise to Prisoners’ (1988) 26(1) Federal Law Review <http://pandora.nla.gov.au/nph-arch/2000/Z2000-Oct-26/http://law.anu.edu.... at 10 June 2007.

• Stevens, Bronwyn, ‘Limiting the Franchise: Not an Entirely New Phenomenon’ (2006) 25(3) Social Alternatives 20, 20.

Case law:

• Hirst v United Kingdom (No. 2) (2004) 38 EHRR 40.

• Sauvé v the Attorney General of Canada [2002] 3 SCR 519.

• Washington v State, 75 Ala 582, 585 (Ala, 1884).

Legislation:

• Canadian Elections Act, RSC 1985, c 9.

• Commonwealth Electoral Act 1962 (Cth).

• Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2004 (Cth).

Other Sources:

• Australian Bureau of Statistics Prisoners in Australia Cat no. 4517.0 (Canberra : ABS, 2006).

• Australian Law Reform Commission, Civil Disabilities, Discussion Paper No 31 (1987) 51.

• Commonwealth Office of the Status of Women, Women’s Suffrage: Our Centenary of Women’s Suffrage (2002) Office for Women <http://ofw.facs.gov.au/downloads/pdfs/centenary_suffrage_brochure_bookle... at 3 June 2007; Commonwealth Franchise Act 1902 (Cth).

• Commonwealth, Inside Outcasts: Prisoners and the Right to Vote in Australia, Parl Paper No 12 (2004) 1.

• Fitzgerald, Sandey, Ending Felon Disenfranchisement: What Voting Rights Should Prisoners Have? (2005) Macquarie University <http://democratic.audit.anu.edu.au/categories/felon_disenfrm.htm> at 1 June 2007.

• Legal Information Access Centre, Timeline of events in electoral history (1999) Austlii <http://www.austlii.edu.au/au/other/liac/hot_topic/hottopic/1999/1/6.html> at 6 June 2007; Commonwealth Franchise Act 1902 (Cth).

• Levingston, Kirsten, ‘Felon Disenfranchisement: Costs and Consequences’ (Speech delivered at the Open Society Institute, New York, 20 June 2006).

• Lynch, Philip, ‘Human Rights and Social Policy: Applying a Human Rights Approach to Prisoners and the Right to Vote’ (Working Paper No 41, Victoria Council of Social Service, 2006) 16.

• Orr, Graeme, Ghosts of the Civil Dead: Prisoner Disenfranchisement (2003) Griffith University <http://arts.anu.edu.au/democraticaudit/data/result.asp?kw=felon> at 1 June 2007.

• Sawer, Marian, Election 2004: How Democratic are Australia’s Elections? (2004) Australian National University <http://www.australianreview.net/digest/2004/09/sawer.html> at 3 June 2007.

• State Incorrections Network, Voting Rights for Prisoners Submission to the Federal Senate (2006) State Incorrections Network <http://www.incorrections.org.au/resources%20AND%20UPDATES.htm> at 10 June 2007.

• The Federation Press, ‘Prisoners as Citizens: Human Rights in Australian Prisons’ (Press Release, March 2002).

• The Sentencing Project, Felon Disenfranchisement Laws in the United States (2007) The Sentencing Project: Research and Advocacy for Reform <http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=335> at 9 June 2007.

• Willis, Liz, Prisoner Voting Rights (2007) Justice Action Australia <www.justiceaction.org.au/index.php?option=com_content&task=view&id=204&I... at 9 June 2007.