University of Amsterdam Faculty of Law
Criminal Disenfranchisement and Human Rights Treaty Obligations: Compatible or not?
Maiara Leite Cardoso
Criminal Disenfranchisement and Human Rights Treaty Obligations: Compatible or not?
Maiara Leite Cardoso
Thesis for the Master’s program International and European Law: Public International Law LLM of the University of Amsterdam Words: 13.182
Supervisor: dhr. mr. dr. L.R. Kiestra Date of submission: 15 July 2016
ABSTRACT
In numerous states prisoners not only lose their right to freedom upon conviction, but also lose their right to vote. This practice is known as criminal disenfranchisement and can take form through different types of legal arrangements. This thesis proposes to answer whether criminal disenfranchisement is compatible with human rights treaty obligations. The research also examines the origin of the practice, types of legal arrangements used by states, its justifications, and views of international, regional and national bodies and courts about criminal disenfranchisement. The methodology used consists on the examination of international and regional treaties, works of legal scholars, reports and case law related to the subject. The conclusion attained demonstrates that not only provisions related to the protection of the right to vote are relevant when it comes to criminal disenfranchisement, but that a number of other important treaty provisions raise questions about the compatibility of prisoner’s voting bans with international human right’s protection.
TABLE OF CONTENTS
Introduction 4
1 Criminal Disenfranchisement 7
1.1 Definition and Origin 7
1.1.1 Concept of “Civil Death” 8
1.1.2 Justifications and Criticism 9
1.2 Different Legal Arrangements in Different States 11
1.2.1 Differences on the Manner of Institution 11
1.2.2 Differences on the Duration 12
1.2.2.1 Temporary 12
1.2.2.2 Permanent 14
2 International, Regional and National Views on Prisoner’s Voting Ban 16
2.1 The Right to Vote as a Fundamental Human Right 16
2.2 United Nations’ Human Rights System and the Right to Vote 17 2.2.1 The Human Rights Committee and the Issue of Criminal
Disenfranchisement 19
2.3 The European Convention on Human Rights and the Right to Vote 21 2.3.1 European Court of Human Rights and its Views on the
Disenfranchisement of Prisoners 22
2.4 The Right to Vote in the American Human Rights System 26 2.5 Relevant National Decisions Concerning Criminal Disenfranchisement 26 2.5.1 Sauvé v. the Attorney General of Canada (No. 2) 26
2.5.2 Minister of Home Affairs v. NICRO 28
2.5.3 Roach v. Electoral Commissioner 29
3 The (In)compatibility Between Criminal Disenfranchisement and Treaty
Obligations 30
3.1 An Argument Against Criminal Disenfranchisement 31
3.2 Article 10(3) ICCPR 35
3.3 Losing the Right to Vote as Degrading Punishment 36
3.4 Criminal Disenfranchisement and Racial Disparities 37
Conclusion 40
INTRODUCTION
The vote is not considered as a privilege for the few anymore, but as a right of all citizens of a country. After harsh struggles from discriminated groups such as women, racial minorities, and unprivileged social classes, groups of people that were once deprived from participating in the choice of their government by having no voting rights are now recognized as part of the electorate. Even though the trend for universal suffrage is a growing one, in some countries convicted criminals became the only group of legally capable adults that is excluded from political participation.
The origin of criminal disenfranchisement is medieval and is related to the concept of “civil death”.1 Convicted criminals that suffer a voting ban are lowered to a status of second-class citizens. For the duration of the incarceration or, in some cases, even after that or permanently, prisoners cease to be a part of the process of choosing their state’s representatives. This group of people, already marginalized in most countries, loses the opportunity to help elect better representatives willing to listen and consider their claims.
We are familiar with reports of torture and inhumane treatment of prisoners and the poor conditions to which they are sometimes subjected worldwide,2 but many states fail to recognise that enhancing political participation can help change this unfortunate scenario. Those who experience prison should have the opportunity to participate and vote for representatives who can defend their interests and well being, and not only depend on others to have a voice. Politicians and elected representatives would be encouraged to learn more about the interests of prisoners, what could contribute to a positive change in the reality of criminal systems around the globe. The fact that in many countries prisoners are not allowed to vote can negatively influence candidates and the politicians in office; if prisoners do not make a difference in the vote count they may be perceived as not worthy of attention. Consequently, few politicians advocate for changes in the prison system of their countries, leaving the claims of this group largely ignored.
1 Jason Schall, ‘The Consistency of Felon Disenfranchisement with Citizenship Theory’ (2006) Harvard BlackLetter Law Journal 22:53, 55.
2 For instance, in its World Report of 2016, Human Rights Watch has identified poor prison conditions in Argentina, Armenia, Bolivia, Brazil, Chile etc. ‘World Report 2016’ (2016) Human Rights Watch < https://www.hrw.org/sites/default/files/world_report_download/wr2016_web.pdf> accessed 1 July 2016, 75, 80-1, 121, 131-2, 172.
Considering the current word’s prison population, and the rate it has been growing since the last decade due to harsh criminal policies, prisoner disenfranchisement has the potential of affecting millions of people worldwide.3 Those who advocate in favour of this form of additional punishment struggle to establish that it has a legitimate purpose, as it is not a necessary integrant part of the punishment nor it helps in the reintegration of former offenders in the society. In fact, not all people are aware that a criminal conviction may result in the loss of their political rights.4 In addition, the negative impact that such laws have on racial minorities is particularly worrisome, since it helps to maintain situations of racial unbalance due to its strong discriminatory effect.5
The research question that this thesis proposes to answer is whether the practice of disenfranchising prisoners is compatible with international human rights law. In order to answer this question, the thesis begins with two descriptive Chapters, having as its basis the current state of affairs of legislations, the works of legal scholars, and reports and case law related to the subject matter. The first Chapter provides an explanation of the origins of criminal disenfranchisement legislations, the most common arguments used to justify the measure and which types of arrangements have been used by states to put in practice a voting ban on convicted criminals. The practice of criminal disenfranchisement in states such as Brazil, France and the United States is explored in more detail. The second Chapter describes the protection that is given to the right to vote under international human rights law, especially under the United Nations’ framework, the European Convention of Human Rights and the American Convention on Human Rights. Under this framework of protection, it is explored how international and regional treaty bodies and courts, such as the UN Human Rights Committee and the European Court of Human Rights, have considered
3 According to data from the Institute for Criminal Policy Research, in the year 2000 the world’s prison population was of 8.664.300 people, increasing to 10.357.134 by the end of 2015. Roy Walmsley, ‘World Prison Population List (11th edition)’ (2016) World Prison Brief <www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_11th_ed ition.pdf> accessed 28 May 2016, 14.
4 Christopher Uggen, Angela Behrens and Jeff Manza, ‘Criminal Disenfranchisement’ (2005) Annual Review of Law and Social Science 1:307, 311.
5 Data collected by The Sentencing Project in the United States in 2010 has shown that nearly 7.7% of the African-American population was disenfranchised, while the number for non African-American population was of only 1.8%. Christopher Uggen, Sarah Shannon and Jeff Manza, ‘State-Level Estimates of Felon Disenfranchisement in the United States, 2010’ (2012) The Sentencing Project <http://sentencingproject.org/doc/publications/fd_State_Level_Estimates_of_Felon_Disen_2010.pdf> accessed 28 May 2016, 1-2.
felony disenfranchisement laws. Reference is also made to relevant precedents of national courts on the matter of criminal disenfranchisement. Finally, in the last Chapter a conclusion is reached regarding the incompatibility of criminal disenfranchisement laws with human rights’ treaty obligations. Remarks on the existent jurisprudence, on relevant provisions from the International Covenant on Civil and Political Rights, and on the negative racial impact of criminal disenfranchisement will be appealed to in support of this conclusion.
1 CRIMINAL DISENFRANCHISEMENT
1.1 Definition and Origin
Throughout history and in many different countries there have been groups of people that were deprived of political participation by reasons such as race, gender, literacy status, property ownership or social class. After a long and arduous battle to enfranchise these once neglected groups, the right to vote became a reality to those who are mentally competent adult citizens. However, except for the imposition of reasonable limitations such as age requirement and need for registration, there is still a group of citizens that lacks the legal right to vote: convicted criminals.6
Criminal disenfranchisement laws, as it is in most countries, provide that committing a crime punishable with imprisonment can cause the criminal to lose the right to vote upon conviction.7 In addition, some other countries provide that any conviction, even those not punishable with imprisonment, may cause the convicted individual to lose the right to vote.8 Hence, criminal or felony disenfranchisement, as
it is also known, can be conceptualized as the restriction of the right to vote for individuals who have been convicted of a crime.
Usually criminal disenfranchisement is implemented as an automatic measure after conviction. This means that losing the right to vote comes as an immediate consequence of the sentence, without the judge undertaking any type of assessment of the individual characteristics of the criminal and the crime she committed.9 The absence of a case-by-case analysis before proceeding to the disenfranchisement of a
6 An electoral study published in 2007 has demonstrated that of the 108 States under analysis, 58% (63) do not allow for prisoners to vote. Narrowing the numbers, 92% Latin American and 68% African countries do not allow prisoners to vote, while 79% of European and 55% East Asian countries allow for prisoners to vote. Brandon Rottinghaus and Gina Baldwin, ‘Voting Behind Bars: Explaining Variation in Enfranchisement Practices’ (2007) 26 Electoral Studies 688, 693-4.
7 Jamie Fellner and Marc Mauer, ‘Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States’ (1998) The Sentencing Project and Human Rights Watch <www.sentencingproject.org/doc/File/FVR/fd_losingthevote.pdf> accessed 14 April 2016, 10; Nora V Demleitner, ‘Continuing Payment on One’s Debt to Society: The German Model of Felon Disenfranchisement as an Alternative’ (2000) Minnesota Law Review 84:753, 767.
8 Brazil, Italy and Greece are examples of states with stricter disenfranchisement laws. Aline Pinheiro, ‘Banido das Urnas: Constituição de 34 países proíbe preso de votar’ (2014) Consultor Jurídico <www.conjur.com.br/2014-jan-08/preso-votar-proibido-constituicao-34-paises> accessed 14 April 2016.
9 Marc Mauer, ‘Voting Behind Bars: An Argument for Voting by Prisoners’ (2011) Howard Law Journal 54:549, 556.
person has been considered to be incompatible with norms of international human rights law by critics of such practice. 10 Indeed, it is argued that with disenfranchisement laws, prisoners suffer a form of “civil death” for the length of their imprisonment or, in some cases, permanently.11
1.1.1 The Concept of “Civil Death”
The practice of denying civil and political rights to prisoners is an ancient one. Throughout the years there has been development in the rights accorded to prisoners and they have also been granted with the setting of important international protection.12 This new standard of protection seeks to guarantee that those who are convicted of a crime are not anymore completely deprived of their rights, however it does not preclude many states from maintaining some sort of legal arrangement that disenfranchises such individuals.13
The idea of depriving those considered as criminals of rights such as voting, access to court, being able to make public speeches and participate of assemblies has its origin in Ancient Greece.14 Criminals were considered infamous and, for that
reason, there was a desire to move them away from the community by the promotion of exile in some cases.15 Later, the Romans sought inspiration in Greek practices and adopted a similar conduct.16 The same practice found its way into medieval Europe, where criminals were often banished from the community and deprived of all rights, in what was considered as “civil death”. A “civil death” was a “death in the eyes of the law”17, and it meant that the individual was no longer entitled to those rights conferred to others and also that he had lost the protection of the state.
10 Morgan Macdonald, ‘Disproportionate Punishment: The Legality of Criminal Disenfranchisement Under the International Covenant on Civil and Political Rights’ (2009) George Washington International Law Review 40:1375, 1394-5.
11 Rottinghaus and Baldwin (n 6) 691.
12 Among the existent instruments are the 1966 International Covenant on Civil and Political Rights, the 1955 United Nations Standard Minimum Rules for the Treatment of Prisoners, the 1984 Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment etc. 13 See n 6.
14 Schall (n 1) 54. 15 ibid.
16 ibid. 17 ibid 55.
In the period of the Renaissance, criminals were qualified as “outlaws” and literally casted outside the protection of the law, allowing for their killing without punishment.18 In England, for instance, it could be the case of a criminal not being considered fit to exercise its rights. In such cases the offender suffered with the banishment from the society, the king or lord would seize his property and he would not have anything to transfer to his heirs, a criminal would not be able to access court or hold any other legal function or civil right.19 The individual that suffered this type of “death sentence” lost its civil, political and legal rights. Even though the practice of banishment was later abolished and less extreme punishments began being adopted,20 one of the traditions that remained rooted in many European nations was the practice of limiting the franchise in the case of criminals.21
This same type of punishment was then introduced in the European colonies and used as an instrument of dominance, as it was the case with the effort to exclude racial minorities from the political scenario. 22 As an example, the English
colonization caused the United States to adopt similar, and sometimes harsher, disenfranchisement laws. According to Alec Ewald the penalties in medieval times were limited to serious crimes and depended on the judicial pronouncement in individual cases, while the practice of blanket criminal disenfranchisement in some states of the United States is without similar limitation.23 Considering the history of criminal disenfranchisement, it is possible to establish that similarities remain between such practice and former medieval punishments.
1.1.2 Justifications and Criticism
In general terms, the two most common justifications for a state to put criminal disenfranchisement laws in place have been to defend the “purity of the ballot box”
18 Alec C Ewald, ‘“Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States’ (2002) Wisconsin Law Review 5:1045, 1059.
19 Ewald (n 18) 1059; Schall (n 1) 55.
20 Rebecca Kingston, ‘The Unmaking of Citizens: Banishment and the Modern Citizenship Regime in France’ (2005), Citizenship Studies 9:23, 35.
21 Schall (n 1) 55.
22 Fellner and Mauer (n 7) 4. 23 Ewald (n 18) 1059-60.
and/or to protect the elections against fraud.24 There is a widespread idea that prisoners are “untrustworthy” people who do not deserve to take part in the making of political decisions of a nation.25 The concern that criminals could vote for candidates that propose policies in favour of weakening the criminal system of the state has also been an argument placed in favour of the measure. 26 The argument that disenfranchisement of prisoners helps to enhance respect to the rule of law and increase civil responsibility has also been frequently used by states defending the measure before courts.27 Additionally, supporters of criminal disenfranchisement usually adopt the argument that individuals who commit a crime are in breach with the social contract, and that the loss of the right to political participation should be implemented as a consequence of the choice of violating and abandoning the social contract.28
These justifications find criticism in the work of scholars that condemn this sort of limitation of the right to vote. Those against it have expressed concern about the measure being used an instrument of dominance, specially considering the significant racial impact of criminal disenfranchisement, and the fact that it does not contribute with the social reintegration process of ex-prisoners.29 Furthermore, the argument that criminal disenfranchisement serves the purpose of preventing voter fraud finds little support when linked to the fact that criminal disenfranchisement is not typically limited to electoral offences.30 In addition, international law and the protection of human rights appear to be in opposition to the establishment of some types of criminal disenfranchisement laws,31 topic that will be explored on the following Chapter.
24 Fellner and Mauer (n 7) 4; Susan Easton, Prisoners’ Rights: Principles and Practice (Taylor & Francis 2011), 220-3.
25 Mauer (n 9) 556. 26 Ewald (n 18) 1077.
27 Michael Plaxton and Heather Lardy, ‘Prisoner Disenfranchisement: Four Judicial Approaches’ (2010) 28 Berkeley Journal of International Law 28:101, 133; Easton (n 24) 223.
28 Ewald (n 18) 1071-3; Uggen, Behrens and Manza (n 4) 309; Afi S Johnson-Parris, ‘Felon Disenfranchisement: The Unconscionable Social Contract Breached’ (2003) Virginia Law Review 89:109, 111-2.
29 Easton (n 24) 227-31; Uggen, Behrens and Manza (n 4) 309-10; Mauer (n 9) 559-63.
30 Note, ‘The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and “The Purity of the Ballot Box”’ (1989) Harvard Law Review 102:1300, 1303; Mauer (n 9) 557.
1.2 Different Legal Arrangements in Different States
There are several different legal arrangements adopted around the globe with regard to criminal disenfranchisement laws. Some countries do not provide for any sort of disenfranchisement of criminals; others provide for a blanket disenfranchisement of all incarcerated individuals; some only disenfranchise certain classes of criminals and only for the duration of the incarceration; and a few go beyond and provide for the disenfranchisement of certain criminals during and even after the end of the incarceration period.32 As the following Sections will show, there are two main categories of disenfranchisement practices, one regarding the manner in which it is instituted and another regarding the differences on its duration.
1.2.1 Differences on the Manner of Institution
In some states criminal disenfranchisement is applied indiscriminately to any person convicted to imprisonment, a practice that is also known as blanket ban.33 In such
cases, the measure is an automatic consequence of a criminal conviction and, consequently, does not take into account special circumstances of the individual or the crime committed. Blanket bans are applied in countries such as Spain, Hungary, United Kingdom, and in some states of the United States.34 In other states, disenfranchisement of a criminal is conditioned to a case-by-case analysis and an explicit order of a judge.35 Therefore, the measure is not an indiscriminate and automatic one, but dependent on considerations on the nature and gravity of the offence,36 or sometimes the length of the penalty.37 Circumstances of the individual might also play a role in determining whether the voting ban should be applied together with the criminal conviction. Sometimes it can be the case of the legislation
32 Macdonald (n 10) 1393. 33 ibid 1389.
34 Laleh Ispahani, ‘Voting Rights and Human Rights: A Comparative Analysis of Criminal Disenfranchisement Laws’ in Alec C Ewald and Brandon Rottinghaus (eds), Criminal Disenfranchisement in an International Perspective, (Cambridge University Press 2009), 31.
35 ibid 28. 36 ibid 27.
37 In countries such as Belgium, Greece, Italy and Luxemburg disenfranchisement is tied to the length of the sentence. ibid 30.
already pre-establishing which crimes can be punished with disenfranchisement.38 In Germany, for instance, the law only provides for disenfranchisement in the case of offences “likely to undermine the foundation of the state or [that] constitutes tampering with elections”. 39 Consequently, a discussion on whether disenfranchisement is compatible or not with norms of international human rights law can be influenced by considerations on the manner of its institution by the state.
1.2.2 Differences regarding the Duration
Depending on the duration of the disenfranchisement, it can be characterized as temporary or permanent. Temporary disenfranchisement is the practice of disenfranchising prisoners only for the duration of incarceration, meaning that after release from prison the individual will be able to vote again.40 States can also determine that after the period of incarceration is over the loss of the right to vote still remain for a determined period of time post-incarceration, but a defined and limited one.41 In other few cases the disenfranchisement is permanent, meaning that even
after the period of incarceration is over the state does not grant the right to vote back to the individual. In such cases, the individual is permanently prevented from ever voting again.42
1.2.2.1 Temporary
Most states that have adopted some sort of disenfranchisement law for criminals do it temporarily.43 Therefore, many examples can be found on this type of legal arrangement. In order to illustrate this diversity, this Section will present two examples, one of a country that also practices blanket disenfranchisement and another
38 ibid 28-30. 39 Demleitner (n 7) 761. 40 Macdonald (n 10) 1395. 41 ibid 1403. 42 ibid. 43 Ewald (n 18) 1046.
one where the decision to disenfranchise prisoners depend on a case-by-case analysis by a judge.
Brazil’s constitution provides for the suspension of political rights for the duration of the effects of a final non-appealable criminal conviction.44 It is a temporary form of disenfranchisement, since it only lasts the same length of the effects of the criminal conviction. After a final decision is issued on a criminal judicial proceeding it must be communicated to the Electoral Justice, which will determine the inclusion of the name of the convicted individual on a database that removes the person from voting lists. The Brazilian example is an indiscriminate form of disenfranchisement, since all final and enforceable criminal convictions are accompanied with the suspension of political rights regardless of an analysis made by a judge or court. The Brazilian disenfranchisement provision applies not only to crimes punishable with imprisonment but also to those punishable with other alternative penalties, the sole requirement is the existence of a criminal conviction. From the moment when a non-appealable criminal conviction is rendered, the automatic and immediate result is that the convicted person will no longer be entitled to vote while its effects last. In the case of imprisonment, the right to vote is only restored with the criminal’s release from prison.
France is an example of a European country that adopts criminal disenfranchisement.45 The measure is not indiscriminately implemented, which means that in France not all prisoners are deprived from their voting rights. In this case, disenfranchisement depends on an explicit order of the court46 and is limited to cases of serious offences.47 The determination for the disenfranchisement of a convict only produces its effect when the decision is final without recourse. The fact that an individual decision on the disenfranchisement of the convicted criminal has to be taken indicates that in the French system a case-by-case analysis is needed. The nature of the crime and the individual circumstances of the defendant have an important role
44 Constituição da República Federativa do Brasil (1988), Article 15, III.
45 The number of European countries with no ban on prisoner vote is 17, followed by 12 countries with limited and target bans, and 11 that provide for the voting ban of all prisoners. Ispahani (n 34) 26. 46 Nouveau Code Pénal (1992), Article 132-17.
in the final outcome. The ban is imposed only for a limited duration and it also allows for a judge to reinstate the right when a prisoner is considered rehabilitated.48
1.2.2.2 Permanent
Permanent disenfranchisement49 is the form of disenfranchisement of criminals that most relate to the condition of “civil death” earlier explored. In such cases, the individual that is convicted of a crime loses the right to vote forever. Apart from the general justifications for criminal disenfranchisement, supporters of ex-felon disenfranchisement also make use of the argument that those who already once committed a crime have “shown a propensity to break the law”50, and for that reason these people would be more inclined to committing new crimes, including crimes against elections.
The United States is the only example of a democracy that maintains permanent disenfranchisement legislation.51 The states of Iowa and Florida have laws
that provide for the permanent disenfranchisement of all offenders.52 Both states also
adopt blanket criminal disenfranchisement. In Iowa the lifetime ban can only be reversed by a pardon from the Governor or a process of Restoration of Citizenship.53 Similarly, in Florida the right to vote of ex-felons can only be restored by pardon or application for the restoration of civil rights to a Clemency Board.54 The path to regaining franchise is usually a harsh one, the absence of information and resistance from decision-makers are obstacles that many ex-felons have to face.55 If the individual’s plea to restore the right to vote is denied, the ban is in effect for her whole life.
48 Nouveau Code Pénal (1992), Article 131-26; Ispahani (n 34) 29.
49 Also referred to as indefinite disenfranchisement, “ex-offender” or “ex-felon”. Ewald (n 18) 1049. 50 Note (n 30) 1303.
51 Ewald (n 18) 1046.
52 ‘State Criminal Re-enfranchisement Laws (Map)’ American Civil Liberties Union <www.aclu.org/map/state-criminal-re-enfranchisement-laws-map> accessed 14 April 2016.
53 Marc Mauer and Tushar Kansal, ‘Barred for Life: Voting Rights Restoration in Permanent Disenfranchisement States’ (2005) The Sentencing Project <www.sentencingproject.org/doc/publications/fd_barredforlife.pdf> accessed 14 April 2016, 12. 54 Mauer and Kansal (n 53) 10; Elizabeth Hull, The Disenfranchisement of Ex-Felons (Temple University Press 2006), 40.
The examples above demonstrate that there is a great variety of arrangements possible when states establish criminal disenfranchisement legislation, e.g. the decision can be made on the basis of the nature of the crime, in a blanket form or dependent on the length of imprisonment; the disenfranchisement can be an automatic consequence of a conviction or conditioned to a explicit decision of a court on the subject; the voting rights can be suspended only for a limited duration of time or become a lifetime ban; and its effects can take place only when a non-appealable decision is rendered or regardless of that. 56 In other words, criminal disenfranchisement can take many different forms. Understanding the origin and the many different forms in which criminal disenfranchisement can take form is the first step in order to answer the question of its (in)compatibility with the protection of international human rights. As it will be demonstrated on the subsequent Chapter, since the practice is not uniform, it can be the case of possible different answers depending on the type of legal arrangements chosen by each state when it comes to prisoners’ voting rights.
56 Ispahani (n 34) 26-33.
2 INTERNATIONAL, REGIONAL AND NATIONAL VIEWS ON PRISONER’S VOTING BAN
2.1 The Right to Vote as a Fundamental Human Right
The right to political participation, which includes voting rights, is today enshrined in the most diverse human rights instruments. Even though some nations already provided for political participation under their domestic laws, it was only after the Second Word War that international human rights law emerged and the right to political participation was included amongst the “fundamental human rights” 57 in the 1948 Universal Declaration of Human Rights by the United Nations.58
Freedom of expression, freedom of assembly and freedom of association are some of the rights that support the right to political participation.59 The idea of political participation is that the “mass of citizens” is the source of sovereignty of a state,60 and thus the ability to participate in public debates and dialogues is important
for citizens that want to take part in the conduction of the public affairs of their states. Political participation serves the purpose of helping individuals or groups to be recognized by the government and also, through elections, shape the government’s policies in accordance to their interests.61 The right to vote is an important instrument used to help people guarantee other important rights before their governments.62
Due to the fundamental character of the right to vote, the standard required by the United Nations is the one of universal and equal suffrage.63 It can be said that
57 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR), Preamble 5.
58 Gregory H Fox, ‘The Right to Political Participation In International law’ (1992) Yale Journal of International Law 17:539, 545-51.
59 UN Human Rights Committee (HRC), CCPR General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote), The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, 12 July 1996, CCPR/C/21/Rev.1/Add.7, [8].
60 Fox (n 58) 544.
61 Henry J Steiner, ‘Political Participation as a Human Right’ (1988) Human Rights Yearbook 1:77, 100.
62 ibid.
universal suffrage is the heart of democratic legitimacy,64 since it is the right of all people to take part in the political life of their country.65 Those who are elected must govern as representatives of the electorate, and at the same time this electorate will serve, to some degree, as the control for their actions.66 These elements show the reason for the extensive protection that was given to this right under important international and regional instruments.
The aim of this Chapter is to examine the permissibility of criminal disenfranchisement practices in light of the protection afforded to the right to vote under the United Nation’s human rights system, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the system of human rights protection in the Americas, and other relevant national legislations and judicial decisions.
2.2 United Nations’ Human Rights System and the Right to Vote
Under the United Nations framework for human rights, considering the most relevant international instruments, the right to vote is present in Article 21 of the 1948 Universal Declaration of Human Rights (UDHR) and in Article 25 of the 1966 International Covenant on Civil and Political Rights (ICCPR).67 These instruments provide for universal and equal suffrage, granting citizens the right to take part in the government directly or through representation, with periodic and genuine elections held by secret ballot or equivalent free voting procedure. However, the right to political participation enshrined in these instruments is not absolute.
Article 25 of the ICCPR states that,
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: 1. To take part in the conduct of public affairs, directly or through freely
chosen representatives;
64 Debra Parkes, ‘Ballot Boxes Behind Bars: Towards the Repeal of Prisoner Disenfranchisement Laws’ (2003) Temple Political & Civil Rights Law Review 13:71, 83.
65 ‘Human Rights and Elections: A Handbook on the Legal, Technical, and Human Rights Aspects of Elections’ (1994) United Nations Center for Human Rights, New York and Geneva: United Nations, [25].
66 Steiner (n 61) 101-2.
67 Together with the International Covenant on Economic, Social and Cultural rights these instruments form the International Bill of Human Rights.
2. To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
3. To have access, on general terms of equality, to public service in his country.
Therefore, the Covenant provides that every citizen shall exercise the right to political participation without “unreasonable restrictions”, and it is this provision that has been used by states in order to defend the disenfranchisement of prisoners. States that apply a voting ban on prisoners claim that the practice is reasonable under Article 25.
According to Article 2 of the ICCPR,
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Hence, “reasonable restrictions” to the right to political participation are allowed as long as they are not imposed on the basis of any of the explicitly prohibited distinctions mentioned in Article 2.68 Some restrictions to the right to vote are thus permissible under the Covenant, which proves that the right to political participation is not absolute. The question is whether criminal disenfranchisement can be considered reasonable under the provisions of the ICCPR.69 At the time of the drafting, mentions to “unreasonable restrictions” referred to situations of eligibility to vote, such as age limitation or registration requirements for voters, since the preference was for universal suffrage.70 However, no reference to prisoner’s voting rights was made during the drafting.71
Other international human rights instruments also contain specific provisions on universal and equal suffrage. The 1965 International Convention on the Elimination of All Forms of Racial Discrimination provides in Article 5(c) that state parties shall guarantee to all, without distinction as to race, colour, or national or ethnic origin, the right to participate in elections. Similarly, the exclusion of women from the political process is against provisions found in Articles 1-3 of the 1953
68 Fox (n 58) 554.
69 Macdonald (n 10) 1380.
70 Steiner (n 61) 86; Macdonald (n 10) 1385. 71 Macdonald (n 10) 1386.
Convention on the Political Rights of Women, Article 4 of the 1967 Declaration on the Elimination of Discrimination against Women, and Article 7 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women. Therefore, states also bound to these international norms cannot institute discriminatory measures to exclude people from political participation.
Within the margin of appreciation left by Article 25 of the ICCPR, states are free to interpret what restrictions to the right to vote would be reasonable and non-discriminatory. Henry Steiner stressed the existence of divergence in the form that state parties understand the meaning of some treaty provisions, since just a few treaty provisions have near-universal consensus.72 In the case of political participation, the different political systems adopted by the parties to the ICCPR are cause to disagreements on the manner of interpreting and applying the Covenant’s provision on universal suffrage.73 Therefore, for some states a reasonable limitation may
concern the age of voters, and/or their mental capacity, and/or their residency status, and/or the existence of criminal convictions, and/or registration requirements etc.74
2.2.1 The Human Rights Committee and the Issue of Criminal Disenfranchisement
The Human Rights Committee (HRC) has issued General Comment No. 2575 regarding the content of the rights provided in Article 25 ICCPR.76 The document reaffirms that citizens of the contracting states shall enjoy the right to take part in the conduct of public affairs, the right to vote, the right to be elected, and the right to access public service without any of the distinctions mentioned in Article 2 ICCPR.77 The Committee states that, “[a]ny conditions which apply to the exercise of the rights
72 Steiner (n 61) 80-1.
73 ibid 84. 74 Fox (n 58) 554.
75 General Comment 25 (n 59).
76 Macdonald (10) 1386-8; Ruvi Ziegler, ‘Legal Outlier, Again? U.S. Felon Suffrage: Comparative and International Human Rights Perspectives’ (2011) Boston University International Law Journal 29:197, 245-6; Richard J Wilson ‘The Right to Universal, Equal and Nondiscriminatory Suffrage as a Norm of Customary International Law: Protecting the Prisoner’s Right to Vote’ in Ewald and Rottinghaus (n 30), 124-5.
protected by article 25 should be based on objective and reasonable criteria”.78 In addition to the “objective and reasonable” criteria, it provides that the rights to political participation guaranteed by Article 25 ICCPR can only be suspended or excluded on grounds established by law.79 The document goes on into giving examples of what may be reasonable, such as imposing requirements on age, mental capacity or appointment to particular offices.80 Examples of what is not considered reasonable include restrictions on the right to vote in case of physical disability, illiteracy, education or property requirements.81
Explicit mention is made in the General Comment with regard to the possibility of suspending the right to vote of individuals convicted of a crime, to which proportionality is the main requirement.82 The requirement is that in such situations the period of suspension of the right “should be proportionate to the offence and the sentence”.83 The HRC also condemned the suspension of voting rights in the
case of individuals deprived of liberty who were not yet convicted.84
Furthermore, the HRC examined the practice of disenfranchisement of prisoners in reports concerning specific states.85 These comments and reports were issued on the basis of case-by-case analysis of the practice of criminal disenfranchisement in some of the states parties to the ICCPR, and demonstrate a tendency of disapproval towards legislation that provides for restriction on the right to vote of those convicted of a crime.86
In 1993 the Committee, in response to the existence of Luxemburgish criminal disenfranchisement legislation, recommended to Luxemburg the abolishment of the deprivation of the right to vote to individuals convicted of a serious crime.87 In light of Hong Kong’s practice of disenfranchising convicted persons for periods up to 10 78 ibid [4]. 79 ibid. 80 ibid. 81 ibid [10]. 82 Macdonald (n 10) 1386; Wilson (n 76) 125. 83 General Comment (n 59) [14]. 84 ibid. 85 Macdonald (n 10) 1386-8. 86 ibid 1388. 87 ibid 1386-7.
years, the HRC found such restriction of voting rights as disproportionate to the protection set by Article 25 of the ICCPR.88 The United Kingdom was advised by the Committee in 2001 to reconsider its legislation that provided for the disenfranchisement of all convicted prisoners, the HRC characterized the voting ban as an additional penalty that did not contribute to the reformation and social rehabilitation of the prisoner, therefore in opposition to the provision of Article 10(3) of the ICCPR. 89 With regards to disenfranchisement of ex-prisoners in the United States, the HRC concluded that the practice did not meet the requirements of the ICCPR.90 Concern was also shown in respect to the racial impact of criminal disenfranchisement in the United States. Surprisingly, the Committee requested for the first time that a country should change its law.91
2.3 The European Convention on Human Rights and the Right to Vote
In the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) there is no reference to a right to vote. The Council of Europe later included a reference to participatory rights in the First Protocol to the ECHR in 1952. Article 3 of the 1952 Protocol provides for the right to free elections92, but with no reference to universal suffrage or to any limitations to the restriction of this right.93 When interpreting Article 3, the European Commission and the European Court of Human Rights have chosen to approximate the guarantees to those found in the
88 UN Human Rights Committee (HRC), UN Human Rights Committee: Concluding Observations: United Kingdom of Great Britain and Northern Ireland (Hong Kong), 9 November 1995, CCPR/C/79/Add.57, [19].
89 UN Human Rights Committee (HRC), UN Human Rights Committee: Concluding Observations: United Kingdom and UK Overseas Territories, 6 December 2001, CCPR/CO/73/UK, [10].
90 UN Human Rights Committee (HRC), UN Human Rights Committee: Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: United States of America, 18 December 2006, CCPR/USA/CO/3/Rev/1, [35].
91 Macdonald (n 10) 1388; Wilson (n 76) 125.
92 “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” Council of Europe, Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, ETS 9, Article 3.
ICCPR.94 The provision was interpreted in light of the ECHR’s preparatory work and also in its context as a whole, so that it was established that it included the right to vote and to stand for election.95
2.3.1 European Court of Human Rights and its Views on the Disenfranchisement of Prisoners
In Hirst v. the United Kingdom (No. 2), the European Court of Human Rights (ECtHR) considered for the first time the legality of a provision of general and automatic disenfranchisement of convicted prisoners.96 The applicant, a convicted prisoner, alleged that he had been subject to a blanket ban on voting in parliamentary or local elections in violation of Article 3 of the First Protocol to the ECHR. The Court agreed with the applicant’s submission that the right to vote is not a privilege and that the presumption, in a democracy, has to be in favour of inclusion.97 However, it noted that the right provided for in Article 3 of Protocol No. 1 is not absolute, leaving a wide margin of appreciation to the contracting states of the ECHR.98
In order to determine whether the requirements of Article 3 of Protocol No. 1 had been complied with, the ECtHR assessed whether the essence and effectiveness of the right protected by the Protocol was not impaired, also examining if the norm pursued a legitimate aim and if its mean of employment was not disproportionate.99 The voting ban to people convicted and serving custodial sentence imposed by the United Kingdom’s Representation of the People Act 1983 was considered in light of these requirements. With regards to the existence of a legitimate aim to the measure, the ECtHR accepted the argument made by the government that the aim pursued was to prevent crime, enhance civil responsibility and respect for the rule of law, and also
94 Fox (n 58) 560; William A Powers, ‘Hirst v. United Kingdom (No. 2): A First Look at Prisoner Disenfranchisement by the European Court of Human Rights’ (2006) Connecticut Journal of International Law 21:243, 260.
95 Powers (n 94) 261.
96 Hirst v. the United Kingdom (No. 2) (App. No. 74025/01) (6 October 2005) ECHR, [68]. 97 ibid [59].
98 ibid [60]-[61], [71]. 99 ibid [62].
to confer an additional punishment.100 Considering that disenfranchisement is a severe measure, the Court found that the principle of proportionality should be considered in order to establish “a discernible and sufficient link between the sanction and the conduct and the circumstances of the individual concerned”.101 The Court concluded that the measure adopted concerned a large number of offenders and sentences, irrespective of the time of the sentence’s length or the gravity of the offence and individual circumstances.102 It also stated the importance of having a judge’s decision when depriving someone from the right to vote, which did not happen in the case under analysis.103 Since the voting ban provided for in the 1983 Act was imposed automatically on all convicted prisoners in prison, the ECtHR considered it as indiscriminate and a blanket restriction.104 In the Court’s view,
Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.105
Therefore, the measure exceeded the acceptable margin of appreciation left to states since it was not done in a proportionate manner.106 In light of all arguments exposed, by twelve votes to five, the Grand Chamber of the ECtHR found that the automatic and indiscriminate disenfranchisement of the applicant was in violation of Article 3 of Protocol No. 1.
In their Joint Concurring Opinion in Hirst (No. 2), Judges Tulkens and Zagrebelsky considered that the reason for disenfranchisement of prisoners was essentially based on the fact that the person is in prison, is unacceptable under Article 3 of Protocol No. 1. In their view, the “lack of a rational basis” in the provision would be enough to find a violation of the ECHR, without any need to examine the question of proportionality.107 100 ibid [74]-[75]. 101 ibid [71]. 102 ibid [77], [82]. 103 ibid [77]. 104 ibid [82]. 105 ibid. 106 ibid [84]-[85].
The decision in Hirst (No. 2) did not inaugurate a precedent against all forms of disenfranchisement of criminals, but only in regard to blanket bans on voting rights. The Court’s ruling shows that the rights guaranteed in the ECHR can be subjected to limitations, as long as it is for the purpose of a legitimate aim and it respects the principle of proportionality. 108 Criminal disenfranchisement was not ruled out by the Court, but it was suggested as an alternative that states should implement the measure of restricting political rights only by “express judicial decision”, in order to respect the principle of proportionality and establish a reasonable link between the measure, the crime and the individual.109
In subsequent cases, such as Greens and M.T. v. the United Kingdom,110
Anchugov and Gladkov v. Russia,111 and etc.,112 the ECtHR maintained the view that an automatic and indiscriminate ban on prisoner’s voting rights is incompatible with the protection of Article 3, Protocol No. 1.
The ECtHR also examined a case concerning Austria’s disenfranchisement of prisoners sentenced to more than one year for committing offences with intent. Even though the voting ban was not imposed on all prisoners, it was not determined by a judge following judicial proceedings, did not take under consideration specific circumstances of the offence or the offender, and there was also no link between the offence and the sanction of disenfranchisement that could justify the ban.113 Therefore, considering that disenfranchisement of prisoners should be the exception, the Court ruled in Frodl v. Austria that there had been a violation of the right to vote.114
However, in Scoppola v. Italy (No. 3) the Grand Chamber held that the provision of Italian law that disenfranchised all individuals convicted to imprisonment
108 Powers (n 94) 254; Macdonald (n 10), 1389.
109 Hirst v UK (No. 2) (n 96) 71; Macdonald (n 10), 1390.
110 Greens and M.T. v. the United Kingdom (App. Nos. 600041/08 and 60054/08) (23 November 2010) ECHR.
111 Anchugov and Gladkov v. Russia (App. No. 11157/04) (4 July 2013) ECHR.
112 Sövler v. Turkey (App. No. 29411/07) (17 September 2013) ECHR; Firth and Others v. the United Kingdom (App. Nos. 47784/09 and nine others) (12 August 2014) ECHR; Murat Vural v. Turkey (App. No. 9540/07) (21 October 2014) ECHR; McHugh and Others v. the United Kingdom (App. No. 51987/08 and 1014 others) (10 February 2015) ECHR.
113 Frodl v. Austria (App. No. 20201/04) (8 April 2010) ECHR, [28], [34]. 114 ibid [35].
for three or more years did not violate the applicant’s right to vote.115 Different from previous cases, as the ECtHR is not bound to its previous judgments, the Grand Chamber chose to focus on the length of the sentence, deciding not to identify as indiscriminate the disenfranchisement applied irrespective of any assessment of the crime committed or individual circumstances of the individual.116 The Grand Chamber considered that the absence of the intervention of a judge was not enough to characterize the measure as automatic, general and indiscriminate,117 and that the Italian legislation that limited the disenfranchisement of prisoners on the basis of the length of the sentence already demonstrated the concern of the legislature in applying such measure in limited cases based on factors such as the gravity of the crime and the conduct of the offender.118
The decision in Scoppola (No. 3) is criticised for not having applied the same proportionality test used in Hirst (No. 2) and Frodl that could have led to the finding that the Italian provision on disenfranchisement of prisoners was also in violation of the ECHR’s First Protocol,119 specially because the legislation under analysis
provided for automatic disenfranchisement, which meant that the measure was applied without any judicial determination and without considering the individual circumstances of the case.120 Nonetheless, since the ruling in Hirst (No. 2) many decisions of the ECtHR regarding criminal disenfranchisement practices of ECHR’s contracting parties have demonstrated an increasingly trend to consider the right to vote as a fundamental right and an important part of the foundation of democratic societies,121 which should be subjected to limitations only in exceptional cases.122
115 Scoppola v. Italy (No. 3) (App. No. 126/05) (22 May 2012) ECHR, [106]-[108], [110].
116 Edward C Lang, ‘A Disproportionate Response: Scoppola v. Italy (No. 3) and Criminal Disenfranchisement in the European Court of Human Rights’ (2013) American University International Law Review 28:835, 854-5.
117 Scoppola v. Italy (No. 3) (n 115) [99]. 118 ibid [106].
119 Lang (n 116) 857. 120 ibid 861.
121 See n 110, 111, 112, 113. 122 Powers (n 94) 294-5.
2.4 The Right to Vote in the American Human Rights System
The 1969 American Convention on Human Rights is the only human rights instrument that contains a provision that explicitly authorizes states to disenfranchise its convicted prisoners.123 Article 23(1)(b) of the American Convention provides that every citizen has the right to participate in government through the enjoyment of the right “to vote and be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot”. However, Article 23(2) allows states to impose limitations to the exercise of these rights “only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings”.
Protection to the right to universal and equal suffrage is also present in the Articles XX and XXXII of the 1948 American Declaration of the Rights and Duties of Man and in Article 3 of the 2001 Inter-American Democratic Charter. The organs of the Organization of American States that oversee human rights in the Americas have not yet issued comments or decisions regarding the permissibility or not of criminal disenfranchisement legislation under the American protection of the right to vote.124
2.5 Relevant National Decisions Concerning Criminal Disenfranchisement
2.5.1 Sauvé v. the Attorney General of Canada (No. 2)
The Supreme Court of Canada upheld in 2002 that a federal ban on prisoner voting was unconstitutional. 125 The decision in Sauvé (No. 2) subjected prisoner disenfranchisement to close scrutiny under the provisions of the Canadian Charter of
123 Wilson (n 76) 127.
124 The practice of criminal disenfranchisement in places such as Iowa and Florida in the United States, as mentioned in Section 1.2.2.2, are yet to be analysed under the Inter-American system. However, despite the apparent permissibility of disenfranchisement of prisoners, some practices still might be considered to be in contradiction with the protection of the right to vote under these instruments, in special in the case of automatic and indiscriminate voting bans since Article 23(2) of the American Convention appears to suggest the necessity of the intervention of a judge in order to determine the disenfranchisement of individuals. Furthermore, the question of permanent disenfranchisement is another one that should be answered by human rights bodies in the Americas.
Rights and Freedoms.126 In 1993, the Supreme Court struck down a provision of Canadian law that instituted an automatic and blanket ban on voting rights of all prisoners in Sauvé v. Canada (No. 1), on the grounds that it was incompatible with the principle of proportionality.127 Almost a decade later, the Court was called upon to assess a less general provision on the disenfranchisement of prisoners in Sauvé v.
Canada (No. 2). Richard Sauvé, a prisoner serving a life sentence for murder, claimed
that the 2000 Canada Elections Act provision that barred prisoners serving sentences of two years or longer from voting in federal elections violated the right to vote enshrined in Section 3 of the Canadian Charter of Rights and Freedoms.128
The majority of the Court ruled that the provision on prisoner disenfranchisement, even if restricted to cases punishable with longer sentences, was an unjustifiable infringement to the right to vote in a free and democratic society.129 The Court’s concern with the fundamental role of universal suffrage in a democracy is well represented in the following passage of the judgment:
A government that restricts the franchise to a select portion of citizens is a government that weakens its ability to function as the legitimate representative of the excluded citizens, jeopardizes its claim to representative democracy, and erodes the basis of its right to convict and punish law-breakers.130
The Supreme Court found that limiting the provision of disenfranchisement to individuals serving sentences of two years or more failed to meet the proportionality test as it did not make a distinction between serious and minor offences, and also because there was no reasonable link established between the length of sentence and prisoner’s entitlement to vote.131 As a consequence of the decision and since no
reform was made on the 2000 Canada Elections Act, all prisoners in Canada have the right to vote in federal elections. 132 The ruling in Sauvé (No. 2) is a leading precedent on the matter of disenfranchisement of prisoners and the protection of the right to vote
126 Parkes (n 64) 80.
127 Sauvé v. Canada (Attorney General) [1993] 2 S.C.R. 438, [2]. 128 Sauvé (No. 2) (n 125).
129 ibid [1], [62]. 130 ibid [34]. 131 ibid [55]-[59]. 132 Ispahani (n 34) 46.
in Canada and even in other jurisdictions,133 as the following Sections will demonstrate.
2.5.2 Minister of Home Affairs v. NICRO
The National Institute for Crime Prevention and the Reintegration of Offenders (NICRO), together with two convicted prisoners, contested before the South African Constitutional Court the constitutionality of a provision from the Electoral Laws Amendment Act 34 of 2003 that allowed the disenfranchisement of individuals serving a sentence of imprisonment without the option of a fine by precluding voters’ registration.134
Following section 36(1) of South Africa’s Constitution, the Court considered that the rights enshrined in the Bill of Rights were not absolute, including the right to vote, allowing it to be restricted by law to the extent of a reasonable and justifiable limitation in an open and democratic society.135 Therefore, a limitation on the right to
vote was subjected to a proportionality analysis.136 The government failed to establish
a reasonable and justifiable explanation for limiting the right to political participation of all prisoners, and also did not succeed in convincing the Court with its reasons based on logistics, expenses, and enhancing the states image of being tough on crime. 137 Referring to Sauvé (No. 2),138 the majority of the South African Constitutional Court found the blanket ban on prisoners’ voting unconstitutional and invalid, and ordered the registration of all those who were entitled to vote so they could participate in the upcoming election of 2004.139
133 Plaxton and Lardy (n 27) 102.
134 Minister of Home Affairs v. National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and Others [2004] Case CCT 03/04 ZACC 10 (3 March 2004), [2]-[3], [13]. 135 ibid [23].
136 ibid [33].
137 ibid [37], [47], [56]. 138 ibid [67].
