Paul Quinn wants to take us back to the days when all prisoners could not vote. Why on earth would he want to do that?

Last week, for my sins, I attended a couple of conferences in Wellington. One involved a comparative look at Canada and New Zealand, seventy years after the first diplomatic connections between those countries was established. The second, "We the People(s)", centred on the vexed question of how popular participation in government occurs, and how it should occur.

I mention this simply because on the eve of the latter conference, Paul Quinn's members bill designed to take away the vote from all convicted persons while they are detained in prison was drawn from the parliamentary ballot. I don't know whether this twist of fate was emblematic of the "We the People(s)" conference theme, or was deeply ironic in light of its concerns.

After all, in one way it demonstrates how all aspects of our constitutional system are rooted in the ideal of directly accountable decision-making - the elected representatives of the people get to debate and determine even the most basic terms of our polity's engagement in governance. Yet in another, Paul Quinn's proposal indicates how tenuous and contingent anyone's participation in government is. Yes, you have a voice and a right to use it ... until such time as the majority of MPs decide you don't.

However, enough of the theorising. Just why is Paul Quinn proposing this move (and at the moment it is just Paul Quinn's idea, although predictably David Garrett told National Radio he thinks it is a very good one)? Well, the policy explanation for the Bill is that it simply takes New Zealand back to the position we were in before the Electoral Act 1993 raised the threshold for disenfranchisement to those in prison serving a sentence of 3 years or more. This increase occured because in 1986 the Royal Commission on the Electoral System recommended it, and the Solicitor-General concluded that to not raise the threshold would breach the New Zealand Bill of Rights Act. In short, both bits of advice were that if you are going to disenfranchise prisoners, you should only disenfranchise the worst of them and not all people who end up behind bars.

Paul Quinn says it is now necessary to revisit that decision because the facts show that a good number of people who end up in jail for terms of less that three years have committed previous crimes. In other words, everyone who ends up in jail is "the worst of them", and so does not deserve the vote (at least while they are serving that sentence).

There's a lot that can be said about this specific proposal, and no doubt it will be said if the Bill gets to select committee. For one thing, why disenfranchise a person sentenced to a month in jail just before election day, while a person sentenced to 2 years home detention still gets to vote unimpeded? Given that sentencing decisions reflect more than a crime's "seriousness", but also incorporate things like whether there is a suitable place to serve a home detention sentence, should the right to vote be contingent on such factors?

More seriously, should we adopt a policy proposal that has been declared in breach of fundamental human rights in Canada, the United Kingdom, and (sort of) Australia? For this reason alone, it's a virtual certainty that the Attorney-General will attach a notice to Paul Quinn's bill to the effect that it is inconsistent with our New Zealand Bill of Rights Act.

But even more fundamentally, we might ask why we disenfranchise any prisoners at all? What is the purpose of doing so? And do those arguments really stack up?

In the literature, as they say, there are three reasons commonly given for taking the vote away from prisoners. (Greg Robins has done a good job setting out these arguments in an article in this law journal, which unfortunately is not on line.) First, it is a form of punishment. Second, it marks out the prisoner as having breached the social contract with the rest of society. And third, it reflects the fact that the prisoner is not morally worthy to trust with the vote.

The first argument, that disenfranchisement of prisoners is a form of punishment, just doesn't seem to work to me. For one thing, it is very hit and miss in its application. If someone is sentenced to a years jail in the middle of an election cycle, then it isn't any sort of punishment at all. But if someone is sentenced to a months jail for supplying marijuana the week before an election, it is as great a punishment as that applied to someone in jail for (say) 5 years for aggravated robbery.

Furthermore, I'm not sure we should be treating the removal of people's fundamental rights and freedoms simply as convenient retributive tool. Of course, prison itself involves the deprivation of a basic liberty - that of movement. And the prison regime may carry with it associated limits on freedoms like expression, or peaceful assembly. But it's another step to then remove unrelated freedoms, such as the right to vote, in the name of punishment. Simply put, would we contemplate punishing all prisoners by taking away their right to manifest their religion while in jail; and if not, why is it OK to punish them by removing their right to vote?

The second argument, that removal of the franchise is a reasonable response to a criminal's breach of the social contract, sees voting as a relational right. In other words, your right to take part in deciding how society will be run depends upon your preparedness to accept and live by the rules society lays down through the criminal law. And if you put yourself outside those rules by committing a crime serious enough to end up in jail for, then you lose your right to vote for the period in which you are jailed.

That is all well and good. But the problem is that if we're invoking some contractual idea to underpin the right to vote, is it wise to completely oust prisoners from that contract while they are in jail and then hope they magically become rehabilitated back into society upon their release? Should we not be trying to reconnect these disaffected individuals with wider society, not relegating them to the ranks of the civil dead?

Finally, the third argument that prisoners just are not morally worthy to vote alogside everyone else hearkens back to old ideas about just what the vote represents. Remember, originally the franchise was limited to male property owners over 21 years of age on the grounds that others (female; the poor; the young) did not have the requisite moral and intellectual qualities to vote. Over time, that argument has been batted back bit by bit, until we have the (near) universal franchise of today based on the presumption that taking part in elections is a mark of inherent equality. But I think the older viewpoint continues to linger on in relation to prisoners, who we just think aren't "the right sort of people" to decide who ought to govern us.

I call this the "why should William Bell get the same say on election day as me?" argument. And it is a hard one to rebut, coming as it does straight from the gut. But does it really apply to a 20 year old dope dealer caught once too often with a few ounce bags of marijuana? Or to alcoholic whose fourth time drunk behind the wheel gets her a six month prison term?

And in any case, should the state really make these sorts of moral distinctions as to who is "worthy" and who is "not worthy" to participate at election time? I seem to remember a number of opponents of the Electoral Finance Act getting very het up over just this sort of approach to our democratic rights ... .

All that is by way of saying that far from supporting Paul Quinn's proposed Bill, I rather think we should be looking at removing even the three year threshold for disqualifying prisoners from voting. But of course that would be political poison, especially for a government that is making "tough on crime" a central part of its message.

Oh - I guess there's one other explanation for Paul Quinn's members bill. As the NZPA headline puts it, "Labour, Maori Party to lose if prison voting scrapped". But I'm sure no MP would play so fast-and-loose with peoples' rights for purely political gain ...

Comments (9)

by Tim Watkin on February 15, 2010
Tim Watkin

Arguments one and three hold no weight for me, but the second one seems to merit some consideration. The question of social contract seems quite powerful; it's both the written and unwritten law that holds civilised societies together. If you choose to step outside that written law, at least, by denying the rights of another, then you sacrifice some of your own rights, most obviously your freedom. But you also lose your democratic voice, your right to say how those laws should be set. So, if you choose to ignore the law, you lose your right to influence it. At first blush, that seems to have some proportionality to it.

Having said that, it ignores the reality that some by nothing more than luck of birth are much more likely to break the law than others. If we're restricting rights, we should be very wary of the social statistics that show certain sectors of society, notably the young and Maori, are much more likely to clash with the law, and so put their rights at risk.

In the US it's a huge issue, with many thousands of Black men denied their voting rights for often minor offences. As Andrew ends, that's hugely undermined the voting power of the left, which tends to win more support from the poor and marginalised, who are in turn more likely to offend. Perhaps someone can come up with some of the facts and figures from over there?

It does make you wonder whether a National party MP can run this issue with any real credibility.

by Andrew Geddis on February 15, 2010
Andrew Geddis

Tim,

For what it is worth, here's what the majority of the Supreme Court of Canada said about the idea that  seriously breaching the law should entail the loss of the right to vote:

The social compact requires the citizen to obey the laws created by the democratic process.  But it does not follow that failure to do so nullifies the citizen’s continued membership in the self-governing polity.  Indeed, the remedy of imprisonment for a term rather than permanent exile implies our acceptance of continued membership in the social order.  Certain rights are justifiably limited for penal reasons, including aspects of the rights to liberty, security of the person, mobility, and security against search and seizure.  But whether a right is justifiably limited cannot be determined by observing that an offender has, by his or her actions, withdrawn from the social compact.  Indeed, the right of the state to punish and the obligation of the criminal to accept punishment are tied to society’s acceptance of the criminal as a person with rights and responsibilities.

Now, just 'cause the majority of the Canadian Supreme Court feels this way doesn't by and of itself mean anything for New Zealand. And note also that four other judges would have upheld the Canadian Parliament's right to decide to disenfranchise prisoners serving terms of more than two years. But still, I find it quite compelling ...

by Justin Maloney on February 15, 2010
Justin Maloney

Even if I accept that loss of your right to vote is a fair punishment it is the hit-and-miss nature of it that I do have a problem with. Those who break their contract with society will only lose the vote if there happens to be an election while they are serving their time. Perhaps the judge could take that into account when sentencing, but hardly seems appropriate.

I believe prison is a modern alternative to the old concept of banishment, where you were just given the boot from society for a time. So it is therefore entirely appropriate for you to lose your vote, even if you still retain your right to practice religion freely.

But I still cant reconcile the uneven application of it based on when you commit the crime given the way our democracy works (some may argue elected oligarchy some may argue is a more accurate description).

by Andrew Geddis on February 15, 2010
Andrew Geddis

Justin,

Interesting you mention "banishment" - the physical ousting of a person from their society - as the basis for why modern prisoners justifiably may be disenfranchised. What then are we to make of voluntary exiles - the hundreds of thousands of Kiwis who have chosen to physically remove themselves from our shores? At present, they may continue to vote as long as they visit NZ once every three years (it need only be a stopover on the way between Los Angeles and Sydney). The Royal Commission on the Electoral System said that a similar rule was appropriate for prisoners ... if you are "absent" from NZ society for more than 3 years, your linkage to that society is deemed so attenuated that your right to vote is removed.

by Justin Maloney on February 15, 2010
Justin Maloney

Yup, that's a fair point and see where they are coming from.

I disagree a little with the Royal Commission because I think its too simplistic to imply being in prison is no different to a weekend in Fiji (for the purpose of voting). You are more than just "absent" when in prison, you have actually been "removed" and that removal is not just physical, it is social (and political) as well.

The idea that those who have emigrated (our voluntary exiles) still voting is one you could argue a little. Perhaps they should have to give up their right to vote when they permanently leave, but then defining all that and making it fair would be messy at best.

In a modern world we tend to no longer define the boundaries of our society by simple geographical lines. So it is valid in my mind that you can be an active member of the NZ society while physically living in Australia. I can throw up a bunch of arguments why you might not be the most well informed kiwi , but the fact you are still part of society even while physically absent from its home ground is valid (in many cases).

by stuart munro on February 15, 2010
stuart munro

On the whole, if we were to disenfranchise any group, it would not prisoners as a whole that I would select, nor the insane - because both are thoroughly represented in our parliament.

But persons guilty of crimes with a political dimension, such as fraud, bribery or gerrymandering have some reason to be excluded.

Simiplicity however is often the best argument of all: it is easier and cheaper not to exclude anyone, and criminals, poor saps, must make do with the same miserable level of governance and representation as everyone else. Be they never so Machiavellian they would have to be extraordinarily lucky to get anything of value out of the quite miserably stupid and lazy buffons who purport to govern New Zealand on our behalf.

by stuart munro on February 15, 2010
stuart munro

buffons = buffoons

by Tim Watkin on February 16, 2010
Tim Watkin

Justin, the issue of unlucky timing could be dealt with by dening the person convicted of a crime the ability to vote in the next election, whenever thay may be and whether their sentence is complete or not. Of course it causes other problems, but it solves that one...

by Andrew Geddis on February 16, 2010
Andrew Geddis

Tim,

The "other problems" would include making the job of maintaining the electoral roll much, much harder - the Electoral Enrolment Centre would have to keep track of every imprisoned person each electoral cycle and make sure they don't get enrolled, while also ensuring that people with the same names as those persons don't get taken of the rolls accidentally (as happened in Florida before the 2000 election ...  except that there it was no accident).

We've done pretty well in NZ to get to the stage where over 95% of those entitled to register to vote do register ... I'm not sure it is worth putting this at risk just to scratch some primal urge to exclude prisoners from the vote. Especially as, if we're going to be honest about this, most folks who are/have been imprisoned don't bother to vote in any case!

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