Prison, punishment and democracy

prisonChristina McKelvie is quite wrong when she says that “prison is a place people go to be punished“. Prison is the punishment. Imprisonment. Incarceration. Immurement. Forfeiture of liberty is the penalty. The law allows for no further punishment beyond this. Prison is a place people are sent as punishment, not to be punished.

Prisoners are wards of the state. The state is responsible for their welfare. Which means we, each and every citizen of Scotland, owes a duty of care to prisoners. That may be an uncomfortable thought for some. But it is a fact, nonetheless. It is an unavoidable corollary of a truly democratic system. The necessarily implication of this is that we must ensure that inmates are not subject to additional punishment whilst in prison. It is essential that our justice system be fair. The penalties imposed for breaking the law must be transparent and consistent and even-handed. Which means we must be able to measure, as accurately as possible, the extent to which individuals are being punished. We do this using time. Ideally, the period of incarceration correlates closely with the seriousness of the crime so that those who have committed similar offences forfeit their liberty for the same amount of time.

It’s not easy to know what alternative measure might be used. What is certain is that, were there to be various additional punishments meted out whilst the sentence is being served, measuring the impact on individuals of these on individuals must be as close to impossible as makes no difference. For the system to be perceived as fair, the state must do all it can to ensure that the conditions under which prisoners serve their sentences are as close to identical as possible.

We send people to prison because we care about society. It would be illogical, therefore, not to care about the welfare of prisoners. They may be segregated from society, but they do not cease to be part of it. The vast majority will be expected to resume a life within society once their sentence is served. Prison must prepare them for this. It simply makes no sense to imagine that you can prepare an individual for being part of society by treating them as a social reject. It is in society’s interest that every effort be made to engage those who, self-evidently, have the greatest difficulty engaging.

There can hardly be anything more symbolic of rejection and disengagement than denial of that most fundamental of civil rights, the right to vote. A blanket ban, in particular, must be inherently unfair. Two individuals having committed identical crimes under identical circumstances and been given identical sentences could be arbitrarily subject to different penalties in terms of loss of opportunities to vote simply by virtue of when they serve their period of incarceration. One might miss two or more chances to exercise their democratic franchise, whilst the other misses none. It is inherently and unavoidably unfair.

Democracy is better for being participative. The more people who vote, the better. The more people who vote, the more representative of society the outcome is. In order to ensure – or, at least, facilitate – maximum participation the default position has to be that absolutely everybody has a vote. There should be no discussion about who has a right to vote. The very fact of such discussion diminishes our democracy. What may be debated is the matter of who is permitted to exercise their right to vote. But the onus is on those who wish to deny this permission to make a case which is valid within the context of an overarching set of democratic principles.

I have yet to see any such case for denying prisoners the opportunity to exercise their democratic right.

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Votes for prisoners

“Two men looked out from prison bars, one saw the mud, the other saw the stars.” Frederick Langbridge (Photo credit: antonychammond)
It’s not very often I find myself at odds with Nicola Sturgeon, but on the matter of votes for prisoners I simply cannot agree with her hard-line stance. It is, she claims, a position informed by reasons of “principle, law and consistency”. Perhaps not surprisingly she left political expediency off that list.

The consistency argument is valid only if one supposes that continuing to do things in a certain way is entirely justified by the fact that this is the way they have always been done. Or that conforming to what is done elsewhere is an overriding priority. But bad habits do not get better with practice, they merely become more ingrained.  Those who would call themselves progressives must always be prepared to question established procedures. Consistency in the sense of avoiding arbitrary and frivolous variation is entirely laudable. Consistency in the sense of being hidebound by tradition is rather less so.

Ms Sturgeon has a case, of sorts, when she cites consistency as a reason for maintaining the blanket ban on prisoners voting. But it may not be quite the case that she supposes. We shall return to this.

Citing existing law as a reason for not changing the law seems glibly circular. The law is what the law is. But what is the purpose of government if not to oversee and guide the evolution of the law within the context of an ever-changing society? There is, self-evidently, some measure of pressure for change. One might readily argue that it is part of government’s function to resist such change. To serve as the (small-c) conservative brakes to the impetus of radical forces that might otherwise be overly precipitate. Brakes must be used judiciously, however, for they will not forever hold against the momentum of social reform whose time has come.

Prohibiting prisoners from voting may well be lawful. But that is not to say that it is right.

But it is when she cites principle that Ms Sturgeon is on the least solid ground. One is immediately moved to ask to what principle she refers. Certainly not the fundamental principles of democracy. Inclusion and participation are surely crucial to any meaningful ideal of democracy. This being so, our concept of democracy must take as its starting point and default position that all are included and that all must at least have the opportunity to participate.

From this initial position it may then be argued that certain persons and groups should be excluded. But the burden of argument must be borne by advocates of exclusion. It is a trivial matter, for example, to argue for the exclusion of infants. It stands to reason that, if age is a criterion, then it grows less easy to argue for the exclusion of persons as they get older. Logically, it must be less easy to argue for the exclusion of persons aged twelve than those aged twelve months. And it becomes extremely difficult to make any kind of case for excluding those who have reached the age of majority in numerous other regards.

Those who would diminish our democracy by excluding prisoners must make something better than a banal populist case that incarceration – and not criminality – is a necessary and sufficient cause for doing what to the committed democratic should border on the unthinkable. Such an argument would have to be very powerful and persuasive. It certainly should be free from glaringly obvious flaws. The argument that the imposition of a custodial sentence is, in and of itself, a sufficient criterion by which to define a person as unworthy of the democratic franchise does not withstand even moderate scrutiny. And, make no mistake, that is what opponents of votes for prisoners are saying. For they cannot sensibly claim that they are arguing for the exclusion of persons on the grounds of criminality if they are not prepared to include all those who commit any kind of crime.

Nor can they plausibly argue that they are referring only to serious crimes. The unfortunate reality is that people can end up in prison for anything from failure to pay a fine for not having a TV licence or petty theft to truly heinous crimes of dishonesty and violence. Meanwhile, those who have committed offences which it might easily be argued would warrant automatic suspension of the franchise, such as electoral fraud or corruption in elected public office, may well receive non-custodial sentences. A blanket prohibition on prisoners voting is, quite simply, illogical and cannot possibly meet the high standard required for the drastic step of compromising democracy.

But it should not be inferred from the foregoing that I am entirely unsympathetic to Ms Sturgeon’s plight. I mentioned earlier that there might be a case, of sorts, for maintaining the ban on prisoners voting based on consistency. I also noted that political expediency might be a factor. Although, on reflection, this might be more accurately (or generously) described as genuine practical difficulty.  The problem may be simply stated thus: if the Scottish Government were, for the purposes of the independence referendum, to move away from the blanket ban on prisoners voting, where would it go?

Lifting the ban completely would be fraught with political difficulties and, in any case, would arguably be unsatisfactory because it would mean allowing the vote to those who are obvious candidates for exclusion – such as corrupt public officials. The problem then becomes the far from uncontroversial matter of what criteria would be used to assess which categories of crimes warrant exclusion. It is difficult to see how it would be possible to avoid this ultimately coming down to demands that individual cases be considered on their merits.

The thought of the legal challenges posed by selective enfranchisement of prisoners must be the stuff of nightmares for Justice Secretary, Kenny MacAskill. Consider, for example, the offence of electoral fraud and two separate cases in which one person receives a custodial sentence whilst another is given probation. To be consistent, suspension of the franchise on the grounds of having committed the specified offence must apply to both. But how would it be possible to retrospectively impose an additional penalty on the person who, for reasons that might have little or nothing to do with the particulars of the offence, avoided being sent to prison? Any attempt to do so would inevitably be subject to a legal challenge. And the number of legal challenges arising from this and other circumstances could conceivably run into many, many thousands. All of which would have to be resolved before the referendum.

And if the cases were not all resolved in time it is even possible that the referendum itself could be subject to legal challenge.

While it is entirely understandable that Ms Sturgeon and her SNP colleagues may be reluctant to grasp this nettle, it is nonetheless regrettable. However realistic one may be about the enormous difficulties involved, there is an unavoidable sense that an opportunity is being missed here. And a niggling concern that failure to find some compromise on the enfranchisement of prisoners will taint the constitutional referendum.

It is, above all, for the preservation of the integrity of the referendum that I would urge Nicola Sturgeon to reconsider. To paraphrase William Blackstone, it is better that ten undeserving persons be afforded a vote than that one deserving person should be denied. The practical difficulties of a selective lifting of the ban on prisoners voting are almost certainly insurmountable. Which leaves a stark choice between maintaining the ban and doing away with it completely. I maintain that the latter is the lesser of two evils.

I will not condemn Nicola Sturgeon for making what is, after all, a perfectly sensible political choice. But I would implore her to reflect on the possibility that this is a time to put ethics before politics.

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