Thanks in part to the recent session of the Equalities and Human Rights Committee of the Scottish Parliament, prisoner disenfranchisement is back in focus in Scotland. You can watch that session here:
….or read the Official Report here:
There is also a useful report of the Committee proceedings from Inside Time available here: https://insidetime.org/prisoners-should-be-allowed-to-vote/
Meanwhile, the UK government continues to prevaricate over how to respond to recent European Court of Human Rights rulings on this subject and seems willing to propose only the most limited and miserly reform (see: https://www.theguardian.com/society/2017/nov/02/up-to-100-prisoners-on-short-sentences-to-be-given-right-to-vote).
In this post, Fergus McNeill and Javier Velasquez (University of Glasgow) look further afield, considering current legal challenges surrounding the right to vote for prisoners in Chile, and their implications for civic dialogue and processes of reintegration and desistance from crime.
Prisoners and the (contested) right to vote in Chile
This 19th of November, the Chilean Presidential elections are going to be held. During the last decade, individuals and organizations that advocate for prisoners’ rights in Chile have been very concerned about the de facto disenfranchisement of people serving custodial sentences or in pre-trial detention. In Chile, there is a partial ban of the right to vote; in short, that right is withdrawn from people serving custodial sentences over three years (or remanded in custody facing charges that would permit such a sentence to be imposed under the Criminal Code).
A contrariu sensu, this means that any individual serving a sentence under three years (or remanded and facing such a sentence) retains the right to vote. However, the Chilean Prison Service and the Chilean Electoral Services have not provided the means for allowing this population to vote inside the prisons. Through appeals filed by the National Institute of Human Rights (INDH), the Supreme Court has recently issued a series of rulings that establish that those persons serving custodial sentences who are not subjected to a legal ban to vote should be able to do so inside the prisons. Likewise, the NGO Leasur has launched a campaign called #votopreso to raise awareness about this problem.
The appeals filed by the INDH and the several rulings of the Supreme Court have created the opportunity for a public debate on two different problems which are closely linked. On the one hand, there is the problem of the existence of a population that is currently on remand or serving short custodial sentences who have been denied – unconstitutionally – their right to suffrage by the Chilean Prison Service and the Electoral Commission. Secondly, in Chile, the right to vote is only temporarily lost, and the question arises of whether disenfranchisement may be prejudicial to the possibilities of reintegration and rehabilitation of those who are or who have served custodial sentences.
Most people in prison have already been civically wounded before they arrive – at least to the extent that profound and enduring social inequalities provide the contexts for their offending. To this existing ‘substantive disenfranchisement’ –meaning the denial of the sorts of social rights that facilitate political participation — imprisonment often adds ‘formal disenfranchisement’ — meaning the deliberate withdrawal of rights to political participation. This includes the withdrawal of voting rights, but it also extends to the denial of other forms of political association and expression.
Voting bans silencing prisoners as ‘sleeping citizens’
In effect, people in prison are politically silenced – both by being barred from the polling booth, and by being excluded from political debate, dialogue and deliberation in general. In Chile, this silencing means that political debate ignores any reference to the deplorable state of the prisons, the abuses suffered by people in prison, and any debate about the (in) ability of the prison system to offer effective reintegration and rehabilitation programmes.
Whereas medieval punishment imposed civil death on some prisoners (rendering them non-persons), disenfranchisement (only) during imprisonment might better be described as a kind of civil anesthesia; the errant citizen is ‘put to sleep’ while some ‘correction’ takes place that might allow the rehabilitation of citizenship. At the end of this process, released prisoners are expected to have somehow readied themselves for civic revivification.
However, philosophically speaking, there is a problem with rehabilitating ‘sleepers’. Edgardo Rotman (1990) drew an important distinction between ‘authoritarian’ and ‘anthropocentric’ forms of rehabilitation. The former is an exercise of power; one which overrides the autonomy of the citizen and imposes psychological or personal change, thus violating respect for persons and the norms of liberal democracy. The latter rests on a more individualised form of dialogue between the citizen and the state; one that holds both the offender and the state to account and aims to restore respect for and repair the social contract. This might even be considered a form of philosophical education through dialogue.
Clearly, if people in prison have been politically and civically put to sleep, no such dialogue is possible. Rehabilitation in this situation can only be an authoritarian monologue. A person cannot be persuaded to comply with the law while they slumber.
Criminological theories of “desistance” becomes relevant here. These theories seek to describe the processes by which people stop committing criminal offences. Such theories pose challenges to the criminal justice system: penal sanctions should not hinder this process of desistance from crime, but rather, support and promote it. Research on both desistance from crime and legitimacy in criminal justice make clear why authoritarian rehabilitation is likely to fail (Crawford and Hucklesby 2009; Farrall and Calverley, 2006; McNeill, 2014 ).
Desistance research points to the importance of maturation, positive social ties and the re-crafting of (stigmatised) identities in securing change; imprisonment in general and disenfranchisement in particular run counter to all three. The slumbering citizen is not maturing civically; positive ties to the polity will atrophy through neglect; and stigmatised identities will be left intact (and perhaps reinforced) by the imposition of suspended animation.
To expect the abruptly revived returning prisoner to have developed an internalised commitment to compliance with the law in such circumstances is patently absurd. The re-enfranchised returning prisoner has been a subject of state power not of the sorts of legitimate authority and civic dialogue that might invite normative commitment. Instead, the punishment imposed by the State perpetuates and reproduces existing inequalities and the exclusion of this population, preventing any dialogue.
This line of argument reveals the fracture in the most common defense of prisoner disenfranchisement; one that rests on the social contractarian argument that ‘those who break the laws lose the right to make the laws’. We argue that it is the reverse that is true: ‘Those excluded from making the laws (and from the benefits and protections of laws) lose commitment to compliance with them’.
The current (illegal) disenfranchisement of people in prisons in Chile — which has been repeatedly denounced by national organizations like the INDH and international human rights organizations such as Human Rights Watch annual report or the United Nations Human Rights Commitee — fails to nurture those commitments, weakening already fragile bonds between citizens, civil society and state. But this is also true of prisoner disenfranchisement more generally. By silencing our fellow citizens, disenfranchisement weakens our democracy and our polity and so damages us all.
Crawford, A. and Hucklesby, A. (eds.) Legitimacy and Compliance in Criminal Justice. Abingdon: Routledge.
Marshall, P. (2017) Disenfranchisement and political capacity”, in Griffiths, A., Mustasaari, S., & A. Mäki-Petajä-Leinonen (eds.) Subjectivity, Citizenship and Belonging in Law: Identities and Intersections. Routledge.
McNeill, F. (2014) ‘Punishment as Rehabilitation’, in G. Bruinsma and D. Weisburd (eds.), Encyclopedia of Criminology and Criminal Justice. Springer Science and Business Media: New York.
Farrall, S. and Calverley, A. (2006) Understanding desistance from crime: Theoretical directions in resettlement and rehabilitation. Maidenhead: Open University Press.
Fergus McNeill is a Professor of Criminology and Social Work at the Scottish Centre for Crime and Justice Research (SCCJR) at the University of Glasgow. Twitter @fergus_mcneill
Javier Velasquez is a PhD candidate at the Scottish Centre for Crime and Justice Research (SCCJR) at the University of Glasgow. Twitter @jevelasq
Acknowledgement: A version of this piece was first published in Spanish on 9th November 2017.
Attribution: ‘Citizens’ photo by Dion Hinchcliffe (2015), adapted and used under a creative commons licence.