OCTOBER 30, 2016
WHEN Lady Constance Bulwer-Lytton was imprisoned for her activities as a suffragette, this daughter of a viceroy and sister of a member of the House of Lords went to great lengths to obscure her background, taking the nom de guerre Jane Warton and claiming to be a poor seamstress from London. In doing so, she inadvertently highlighted the unfairness of a system that had historically acted more like a Venus flytrap for the bottom rungs of society rather than an equitable arbiter of law and order. As she wrote of her experience:
Before long I heard the sounds of the forced feeding in the next cell to mine. It was almost more than I could bear, it was Elsie Howey, I was sure. When the ghastly process was over and all quiet, I tapped on the wall and called out at the top of my voice, which wasn’t much just then, “No surrender,” and there came the answer past any doubt in Elsie’s voice, “No surrender.”
The irony of imprisoning the suffragettes was that they were effectively denied the right to vote twice, not just for being women but also for being convicted criminals. This raises the question, do we still consider these women criminals? If the answer to that question is muddled, then it unwittingly leads to another, far more prescient — though seemingly disconnected — question: why don’t we let prisoners vote in the 21st century?
The history of disenfranchisement, from the loss of voting rights to the loss of personal freedom, is unsurprisingly as old as humanity itself. In Medieval Europe, the notion of civil death stripped a convict of all rights in the eyes of the law, even the right to life itself. The legal penalty of outlawry literally put a person outside the law, with those convicted sometimes being known as vogelfrei, which in practice meant they could be killed at will. This German term originally had the simple meaning of being free as a bird; however, in the 16th century it came to develop a more negative connotation, as noted in Jacob Grimm’s Deutsche Grammatik:
As you have been lawfully judged and banished for murder, so I remove your body and good from the state of peace and rule them strifed and proclaim you free of any redemption and rights and I proclaim you as free as the birds in the air and the beasts in the forest and the fish in the water, and you shall not have peace nor company on any road or by any ruling of the emperor or king.
Such stripping of the right to life continued in one way or another up to the 20th century. Today, it’s hard not to believe that a campaign to restore the practice of civil death would be anything other than a guaranteed vote winner.
Instead, what we broadly have — with some exceptions — is a system whereby those incarcerated are denied the right to vote. The United States is somewhat unique in that, in a number of states, convicts who have served their time remain disbarred from voting, often for many years, as part of the “collateral consequences” attached to their sentences. Some countries, both democratic and not, take a different approach: Israel, for example, lets all its citizens vote regardless of imprisonment, as does much of Europe, while in China someone convicted of a crime may be disenfranchised as a separate part of their conviction.
So why don’t we let prisoners vote?
It’s a question whose answer seems at once immediately obvious and yet also elusive — perhaps because it stirs such deep feelings. Former UK Prime Minister David Cameron, locked in a battle with the European Court over prisoner voting rights, stoutly asserted that the prospect of prisoners being allowed to vote made him feel “physically ill.” For, when we think about the rights of prisoners, if indeed we think about them at all, more often than not those prisoners are envisioned as a homogenous group, represented by the worst of the worst, nightmarish incarnations of evil. And so answering the question becomes relatively easy: murderers, rapists, thieves, and (by association) every other criminal should lose their chance to participate in civil society when they attack the fabric of society itself.
The root cause of this entrenched belief is over-confidence in the operations of the criminal justice system. Cases like the suffragettes come to seem like quaint anachronisms — glaring errors that make us wonder how any society could oppose the right of women to vote. For many people, the system can now seem too permissive, too receptive to the rights of those convicted of crimes.
When Englishman John Hirst took his case of disenfranchisement to the European Court in 2001, he became the poster child for those looking to deny prisoners the right of suffrage, the embodiment of an overly permissive justice system. Here was a man with an extensive criminal record, who had bludgeoned his landlady to death because she nagged him too much, and who was now using the law to further bludgeon society itself.
John Hirst wasn’t a prisoner of conscience; he was a master at bringing misery to other people’s lives. After becoming adept at reading the law, Hirst spent his time in prison persistently petitioning, bogging the system down in its own rules. Unsavory as this might be, it is also somewhat fitting that a case like his should be used to test the rules, because while it’s easy to argue the virtues of suffragettes or others wrongly convicted, opponents of universal suffrage will always point to the John Hirsts of this world. The image of the prisoner voting conjures up John Hirst not Jane Wharton, Dennis Rader not Oscar Wilde, Dylann Roof not Cameron Todd Willingham.
The concept of the “Overton window” refers to the range of ideas that are, at any given time, acceptable in public discourse. Often associated with the radical right, it is actually a non-partisan idea. For example, the cause of the suffragettes once lay outside this window, but now lies so firmly within it that the notion of suffrage for women is not considered radical in the slightest. The Overton window suggests that public opinion, rather than the determination of politicians, ultimately leads to social change.
For the moment at least, it is probably fair to say that the idea of voting rights for convicts lies some way outside this window, both for the public and for politicians who have little reason to support those whose votes they cannot canvas. However, groups such as The Innocence Project and Black Lives Matter have begun to bring the question more fully into public consciousness, provoking debate and in some cases political action. President Obama has acknowledged that the criminal justice system is broken, has publicly called for its reform, and has pardoned some of those sentenced under the worst excesses of the war on drugs. In the UK, Prime Minister Theresa May, leading a recently installed right-wing government, used her first speech in office to call for a fight against injustice, pointedly noting that, “If you’re black, you’re treated more harshly by the criminal justice system than if you’re white.”
The irony of May’s position — which unwittingly makes as strong a case as any for universal suffrage — is that sectors of her party were able to argue for Britain’s exit from the European Union based on cases such as John Hirst’s and their implications for the national franchise. Responding last year to another test case in the European Court of Justice regarding the rights of a Frenchman convicted of murder, David Cameron said of the UK position:
Our own law has been tested recently and our supreme court opined that our law was right and that prisoners shouldn’t have the vote, and that’s my view. I’m very clear. Prisoners shouldn’t get the vote. It is a matter for the British parliament. The British parliament has spoken. The supreme court in Britain has spoken. So I’m content to leave it there.
Thus, we have two different Conservative Prime Ministers, both of whom support a blanket ban on prisoners voting, espousing arguments that seem contradictory if not hypocritical. It’s worth noting that the same David Cameron who had such a visceral reaction to prisoners voting also forced through legislation on gay marriage against the wishes of many in his party.
Yet only a few years ago, the idea of prisoners voting would have been seen as a far less radical option.
Progress in the justice system happens at a glacial rate, of course, being far too reactive in nature. The revolution in DNA testing, for example, might lead one to believe that those who were unfairly imprisoned will automatically be exonerated. Unfortunately, however, this affects only a small percentage of cases. Moreover, when a person is convicted and imprisoned for a crime, they have little recourse but to appeal to the system that imprisoned them. Thus, in a liberal democracy, there’s a compelling case for allowing prisoners to vote precisely because this is the only way they can effect change to the system itself. It is, after all, politicians rather than judges who propose substantive shifts in public policy. We live with a system where the guilty man will serve less time in prison than someone wrongly convicted who refuses to admit his guilt, while the innocent man is further robbed of the chance to vote for policies or politicians that will change his situation.
The real question should therefore not be “why don’t we let prisoners vote?” but rather “why do we approach the issue with such a scorched earth mentality, whereby a conviction automatically becomes disenfranchisement?” There’s a glaring irony in the fact that the United States pursues a No Child Left Behind policy when it comes to education, but when it comes to criminal justice, policy is deliberately designed to leave people behind. And we know from the cold hard data that the very people who risk being left behind as children make up the majority of the prison population. On top of that, the system grows ever more willing to criminalize children themselves — disproportionately black, Latino, and special-needs children — in what has been called a “School-to-Prison” pipeline. This adds further injustice to a system in which one in seven black men have been disenfranchised, a figure that should serve as a stark warning about the health of any liberal democracy.
Even for those politicians that labor under the delusion that the system is not broken, we might question why they do not see the virtue in setting an example. Politicians on both sides of the Atlantic have long promoted the ideal of “freedom,” whatever that may mean at any given time. When David Cameron adopts political viewpoints based on what makes him feel physically sick, does he not give carte blanche to the leaders of Commonwealth countries, often presiding over the remnants of British law, to adopt public policies based on their gut reactions? In Uganda, for instance, sodomy laws from the British colonial era are still on the books and homosexuality is illegal; in Pakistan, you can be put to death for blasphemy; in Rwanda, you can be arrested for the offense of journalism. Has the United Kingdom no responsibility to set a more compelling example than a politics based on the gut?
History is littered with examples of laws that today we would consider highly unjust, and in some cases laws that could be broken just by the act of existing. When Alan Turing — celebrated as a hero for his role in codebreaking during World War II — was hauled before a court in 1952 on charges of committing homosexual acts, he only escaped prison by agreeing to a chemical castration. Turing was pardoned in 2013; a campaign to pardon the 49,000 other men who were prosecuted for being gay in the UK estimates that up to 15,000 were still alive as of 2015, while a bill to automatically pardon them was recently “talked out” by the government. Meanwhile, thousands of people remain behind bars across the world for crimes ranging from blasphemy to sedition to adultery.
In most liberal democracies, the laws on personal freedom are also far from settled. In the UK, Stephen Gough — otherwise known as the Naked Rambler — has spent years in and out of prison for contempt of court and outraging public decency. Practicing a kind of gymnosophy, Gough describes himself as a prisoner of conscience for his refusal to wear clothes. Conservative commentator Daniel Finkelstein, who now sits in the UK House of Lords, captured the dilemma Gough presented to the system, while still insisting it was right to jail him:
Our standards of modesty and decency have changed so much and so rapidly that it is hard to believe that they won’t change further, making complete nudity perfectly normal. In anticipating this, Stephen Gough is not dotty, he is just slightly ahead of the rest of us. And when he puts his case to be allowed his nudity, it is hard to resist. The rest of us are the dotty ones, insisting upon dress for which there frankly isn’t a reasonable argument.
Universal suffrage may sometimes be cast as a cause célèbre of the left, but alongside many other justice reforms it should in fact be considered apolitical in nature. Revolving-door prison systems and unchecked recidivism rates serve no one — not those looking to cut public spending, not those looking to reduce crime, not those looking to promote the virtues of liberal democracy in a world where authoritarian voices grow ever more powerful. Universal suffrage, like all matters of crime and punishment, is of course inevitably entwined with politics — as well as with the philosophy of free will and the ethics of personal responsibility. Even allowing all this, however, we seem to live in a perpetual “now,” acknowledging the existence of the past and future while pretending they don’t impinge upon the present. The result is to obfuscate the cost of disenfranchizing prisoners to society at large. At the same time, we often cling to a politics of vengeful punishment, farcically claiming that the right to vote is a privilege withdrawn after conviction, as if this might give people pause before committing a crime. Our policies have done nothing to tackle recidivism rates, while involving prisoners in the societies they will reenter has seen positive results elsewhere. We seem content to throw people out of prison with 40 dollars in their hands and hope for positive results.
Instead of a justice system that aims to leave no one behind, we have one filled with so many holes that it can often resemble a carefully crafted trap. Yet we continue to pretend that fairness, for both society and those imprisoned, lies with a blanket policy of disenfranchisement, even while we are confronted more than ever with the shortcomings of this system. Indeed, from Serial to Netflix’s Making a Murderer, the system’s failings have even become our entertainment. We know that the system is disproportionately biased against people of color, we know that those who commit crimes and have their freedom removed disproportionately come from broken families, we know that those with financial and social means disproportionately receive better outcomes from the system, and we can hopefully recognize the inherent truth in T. S. Eliot’s words from “The Four Quartets,” “In my end is my beginning.”
Yet the system remains in reactive stasis, an abiding moral failure that is unable to look ahead.