BY: RUMAYSA FAISAL LASANIA
The right to vote is generally considered the cornerstone of democracy. Despite this, numerous minorities had to fight for their right to cast a ballot. In the United States for instance, during the early 18th century, the only people allowed to vote were white, male landowners (Carnegie Corporation of New York, 2019). Even today, countries such as Russia and Estonia disallow its prisoners from voting (BBC, 2012). Some argue that this is an infringement of the rights a citizen has while living under a democracy, while others say their disregard for the law bars them from exercising these rights. The question is whether the justice system’s duty is to protect said rights or uphold the order of civilised society by any means necessary. Incarceration itself contains levels of severity; should a shoplifter and a murderer be viewed through the same generalising lens when deciding whether they deserve to be stripped off their liberty? This essay explores the argument through various moral and political angles and dissects the very essence of this debate.
Baljeet Kaur, an Indian researcher working for the Quill Foundation as well as a writer for Economic and Political weekly, argues that stripping away a prisoner’s right to vote,
“undermines law and policy that is meant to rehabilitate and integrate prisoners” (Kaur, 2019). She challenges the moral obligations of the state for all citizens and cites an example of a prisoner protest in the United States where prisoners advocated for representation of their choice in the elections. Furthermore, she analyses counter arguments presented by the majority, that when a person willingly breaks the law, they breach the social contract of society and thus have taken themselves out of the fold. She dismantles this argument by stating article 21 of the Universal Declaration Of Human Rights which states that every single person “has the right to take part in the government of their country, directly or through freely chosen representatives”. Her acknowledgment of opposing arguments shows objectivity in her work. The strength in her arguments lies in her evidence such as the International Covenant of Civil and Political Rights (ICCPR), and The Universal Declaration of Human Rights, both of which are globally recognised. She emphasises on the inclusive language of the article and uses it to convey the fact that voting rights are the sine qua non (essential condition) of democracy, which cannot be restricted by law or any societal contract. Her stance is corroborated by Dr.’s Saif Al Rawahi and Juma’a Musallum Al’azri, experts in the legal status of prisoners and constitutional law, based in Muscat, Oman. Together, they analyse the legal framework around prisoner voting rights in Oman and argue that disenfranchisement goes against the idea of rehabilitation of prisoners (Al-Rawahi & Al’azri, 2023). Like Kaur, they reference article 25 of ICCPR which stipulates that all citizens have the right to vote, irrespective of gender, race, status or political affiliation (Al-Rawahi & Al’azri, 2023). They argue that Oman’s prison policy focuses on rehabilitating prisoners and preparing them to reenter society, and allowing prisoners to vote forces them to look beyond self interest while seeking the betterment of their community, as a vote is not something that impacts one individual but an entire nation (ibid).
Setting aside the legal responsibility democratic governments have in allowing prisoners to vote, some believe they have a civic duty to ensure that no individual’s right to self governance is compromised, as is argued by Professor Corey Brettschneider of Brown University, a teacher of political sciences and also the author of several books on constitutional law and democratic rights. Professor Brettschneider’s qualifications and expertise on democratic law as well as his tenure as a professor are evidence of his credibility. He reasons that prisoners are kept in reprehensible conditions in countries such as the United States, this alone is an infringement of their humanitarian rights for which they deserve a chance to demand change through their political system (Brettschneider, 2016). He also raises a statement made by the Massachusetts state governor declaring, “Criminals behind bars have no business deciding who should govern the law-abiding citizens of the Commonwealth”. He rebukes this statement, arguing that although civic death is the punishment incarcerated individuals must suffer under the law, in recent years the American government has taken steps to grant prisoners freedom to practice their religion and their first amendment rights to freedom of opinion, political or otherwise. In the case of Trop v Dulles, it was concluded that incarceration did not constitute removing citizen status. So it stands to reason, if they remain citizens they should enjoy the same fundamental right to cast a vote
(Brettschneider, 2016). A similar argument is made by Professor Wing Hong Chui, head of social sciences at Hong Kong Polytechnic University. He argues that the right to vote is a right that every human being possesses regardless of religion, race, gender or political affiliation, and that this claim is supported by Basic Law and ICCPR. He questions whether the restrictions placed upon voting in Hong Kong are reasonable and states that if the law argues against discrimination on the basis of social origin, prohibiting people their constitutional right solely based on the fact that they are incarcerated is inherently unlawful.
We cannot, however, ignore the opposing side of this debate which argues that to give prisoners the right to vote would be a violation of the social contract. We must not forget why these individuals are incarcerated in the first place, because of the abhorrent crimes they have committed (Snead, 2019). According to the author, “Felons show through their actions that they do not deserve society’s implicit trust” (ibid). Jason W. Snead argues that the criminal justice system has a responsibility to protect the liberty of lawabiding citizens and punish those who disregard it. He raises opposing arguments made by US senator Bernie Sanders which claims that mass incarceration is a “tool of voter suppression” from a systemically unjust system (Snead, 2019). Snead labels these claims as ludicrous and states that prisoners do not deserve the freedom to exercise their constitutional rights as a consequence of breaking the law. He solidifies his stance, stating that there is no sinister ulterior motive for why prisoners are prohibited to vote other than the fact that they made a choice to break the law, and although they do deserve to return back to society, the burden of proof lies with them (ibid). While Snead has presented logical arguments, there is some evident bias in his writing against democrat socialist Senator Bernie Sanders, as the publication Snead writes for is a conservative news outlet. Despite this, acknowledging opposing arguments is evidence of his objectivity, and his former position as a senior policy analyst in the Edwin Meese III Center for Legal and Judicial Studies makes him a credible source. A similar argument is made by Emad Zafar who writes for the Express Tribune, one of Pakistan’s leading English newspapers with a partnership with the New York Times. In this article he writes that those who have broken the law must not be allowed to enjoy the civil liberty of changing it. He argues that regardless of status, any person who has proven to be a danger to the public and serving a prison sentence should not be allowed to cast a ballot (Zafar, 2018).
Looking past the moral implications, it has also been argued that governments have a responsibility to maintain the integrity of the electoral system. Elections are the basis of a democratic government. They reflect the freedom and power that is held by its citizens, and to allow the same people who disregarded the societal order to decide its fate gives a confusing message about the kind of democracy we represent. This is the argument made by British Professor Peter Ramsay of LSE Law School, who specialises in criminal law, especially its correlation to evolving democracy. He argues that democracy goes far beyond people selecting their governance, it is about the civic role that citizens play in society, and to give incarcerated people the right to vote would undermine the integrity of the electoral system, and betray the trust law abiding citizens have in the judicial system (Ramsey,2013). The basis of his argument is that, under a
democracy, all citizens are privy to the same protection but also the same punishment, and disenfranchising incarcerated individuals is actively upholding this principle, “To punish is to treat the offender as a fellow citizen” (Ramsey, 2013). Ramsey raises logical concerns by emphasising the risk of devoiding the vote into a meaningless act by removing the necessary prerequisites. This stance is corroborated by prominent American legal scholar and analyst, Roger Clegg. He too believes that felon disenfranchisement laws are a reflection of the choice made by the people, as democracy intended (Clegg, Conway, Lee, 2008). He emphasises the collective power held by citizens under democracy and the civic responsibility that comes along with it. His core argument is that since prisoners do not have this civil responsibility for the duration of their incarceration, they have no reason to enjoy civil liberties (Clegg, Conway, Lee, 2008).
Ultimately, bestowing prisoners the freedom to vote has shown benefits as well as liabilities. It is important to acknowledge the role of the judicial system in rehabilitating and reintroducing felons into society, and whether taking away the vote is a step in the right direction. Furthermore, voting is a fundamental democratic right which should not be stripped under the guise of violating the social contract. On the other hand we cannot ignore the responsibility the judicial system has in maintaining democratic integrity as well as the trust of citizens. Moreover, we should consider the ramifications of allowing the morally corrupt to have a say in the leadership of their nation. Prior to researching this topic, I held the very firm opinion that no prisoner should be allowed to vote under any circumstances. However, as my research progressed, I began to question my stance. At first, I was fully convinced by the argument of morality until I realised that morality is extremely subjective and peoples definition of morality is heavily influenced by their religious and cultural beliefs as well as their personal experiences. We cannot question the degree of moral corruption of prisoners without considering the nuance of each individual case. I am now inclined to lean towards prisoners having the right to vote. This essay forced me to accept the fact that a blanket ban on prisoner voting goes against the goal of rehabilitation, and in a world where there are no set definitions of what constitutes and morally right or wrong, we cannot scrutinise all prisoners under the same lens. I do intend to conduct further research to gain a deeper understanding of prisoner voting rights, particularly how they affect marginalized communities in the western world. Lastly, I would like to explore different perspectives on the issue, beyond the for-and-against framework.
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