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Practical flaws of felony disenfranchisement and the social contract theory

Preamble

The social contract theory is a subtype of jurisprudential theory that describes the dynamic between state and individual. In theory, an individual has to sacrifice some sovereignty to the state, and in return, the state will provide protection of rights and maintain order. Lawmakers commonly reference and use the social contract theory to justify tough-on-crime policies to deter recidivism. This is politically advantageous as a study show that tough on crime policies are usually popular amongst voters.


Felony disenfranchisement is one such policy that is rooted in the social contract theory. The idea that an offender loses his right to be part of the electoral decision-making process is an idealised and flimsy approach to sentencing and penal policy. I opined that the Court has to consider the most important facets when sentencing, is the rehabilitative and restorative elements of a crime. This sentiment is reflected in many jurisdictions, reflecting the need to reduce recidivism in a society.


Section 7(1)(h) of the Sentencing Act 2002 (NZ)

● Section 5 of the Corrections Act 2004 (NZ)

Section 1(ii) of the Sentencing Act 1991 (AU, VIC)

Reformative Training Section 305 of the Criminal Procedure Code (SG)

● Fair Sentencing Act 2010 (US)

Felony disenfranchisement
Illustration by Joelena Despard

Australia and New Zealand's legislation

There was an amendment to felony voting laws in NZ in 2010. National MP Paul Quinn proposed a law that would bar any person who is currently imprisoned to vote. Paul Quinn justified this law on the social contract theory. Needless to say, this amendment was extremely controversial. There was a Section 7 NZ Bill of Rights Act 1990 report made in regards to this law and several legal challenges.

A section 7 report requires the Attorney-General to bring to the attention of the House of Representatives any provision in a law that appears to be inconsistent with any of the rights and freedoms affirmed in BORA

The 2010 amendment has been revoked by the 6th Labour Government. The current law in New Zealand is slightly more lenient. Convicts imprisoned for 3 years and more are barred from voting. This group has de facto the same status as citizens staying overseas for more than 3 years which can't vote under Section 80(1)(a) of the Electoral Act 1993.


Australia's felony disenfranchisement laws are state-dependent.

○ NSW: Prisoners sentenced to 1 year or more disqualified

○ Victoria: Prisoners sentenced to 5 years or more disqualified

○ Queensland: Prisoners sentenced to any sentence disqualified

○ South Australia: No disqualification to any prisoners

○ Tasmania: Prisoners sentenced to 3 years or more disqualified

○ ACT: No disqualification to any prisoners

○ NT: Prisoners sentenced to 3 years or more disqualified

○ Western Australia: Prisoners sentenced to 1 year or more disqualified



International legislation comparison on Criminal Disenfranchisement

Many countries in the world adopt felony disenfranchisement policies. Canada is the only commonwealth country with universal suffrage (everyone has the infallible right to vote); the rest (Australia, India, New Zealand, the US and UK) have limited suffrage legislation. The UK has actively ignored an ECHR decision that deems the rationale in Hirst v United Kingdom (No 2) (2005) is disproportionate. "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention." The UK Parliament has affirmed their stance by voting against the ECHR decision, best described by a Tory backbench MP's quotes.

Any (suffrage) change would be made "over my dead body"
Prisoners 'damn well shouldn't' be given right to vote. - David Cameron 2013

UK: Depending on the crime. There are felony disenfranchisement provisions, but some petty crimes do not fall within the ambit of those provisions.


The USA.

● Twenty states have disenfranchisement laws that bar voting when offenders are in prison, but their rights are restored after prison.

● Fourteen states allow probationers and parolees, but not inmates.

● Five states allow probationers, but not inmates and parolees.

● Eight states allow some, but not all, persons with felony convictions to vote after completing their sentences. Meaning some rights do not get restored after leaving prison.

● Virginia permanently disqualifies voting rights once sentenced.



The Classic Labelling Theory

Howard Becker introduced classic labelling theory, a sociological phenomenon that describes how an individual's mentality and traits would be heavily affected if society decides to 'brand' the person. A person would internalise the 'brand' of being a criminal through diminished rights or social ridicule. For example, suppose a person who just left prison cannot participate in mundane social activities such as voting or travelling. In that case, the social exile will lead to the development of a subconscious mindset of (adjective) that would be hard to expunge even after leaving prison. Becker describes this brand as 'cumulatively disadvantageous' to the wellbeing of the person, and eventually, it will become a 'self-fulfilling prophecy'. That explains why reoffending rates are high in jurisdictions that are less lenient with their penal policy.


Howard Becker
Howard Becker and his labelling theory. Picture by The New Yorker.

Much like the classic labelling theory, there's another theory called reintegrative shaming. Australian criminologist John Braithwaite developed Reintegrative shaming seems to purport Becker's same idea. Reintegrative shaming argues that punishment and condemnation should focus on offenders' behaviour instead of their characteristics and condition. Felony disenfranchisement is the stigmatic shaming and the antithesis of reintegrative shaming. Felony disenfranchisement denounces the offender's position in society, which further alienates them from reintegration.




Overlooking racial discrepancies

A Berkeley La Raza Law Journal article states that empirical research shows felony disenfranchisement indirectly leads to higher reoffending rates. The stigmatisation of being a felony leads to both social and practical barriers. This ineligibility to public assistance would make it hard for a person to achieve stability. To look at an extreme example, in the US Supreme Court case Hunter v Underwood, the Court found that section 182 of the Alabama Constitution, which strips voting rights from any person convicted of a crime, as racially unjust. The law was enacted the Southern Democrats in the early 20th century to exclude large African American electorate sections intentionally. Offences could be as trivial as traffic violations could strip a person's right to vote away.


Picture by Library of Congress.
Literacy tests in the Jim Crow era to prevent voting.

New Zealand does not have permanent disenfranchisement laws. However, an offender currently in prison might not be able to vote for policies that could severely affect them or their family. (A regulatory impact assessment by the Ministry of Justice shows the 2010 amendment further alienates Māori them from the electoral system. Māori historically has a low voter turnout. Additionally, statistics in the same evaluation show that after leaving prison, many do not re-enrol after being disqualified. If a prisoner cannot partake in his democratic and civic duties while in prison, this will likely diminish their voting habit and faith in the electoral system.



The examples above show that the experience and circumstances a person faces in prison will have lasting effects even after they leave. Māori and African Americans are marginalised sections of society that have disproportionately high imprisonment rates. The results of high imprisonment rates mean that many would not be able to participate in the voting. Thus, disenfranchisement laws will only perpetuate the vicious cycle of marginalisation. While it is a racist and reprehensible view, politicians are not afraid to attribute and suggest that these imprisonment rates are due to racial or disciplinary issues within that culture. It is simply ignorant to say "BUT BLACKS COMMIT MORE CRIME".




Breaking down policy and practical justifications for disenfranchisement

Several justifications have been made to affirm the validity of felony disenfranchisement laws in society. One of them is a broad assumption that ex-offenders would form a voting block and vote for soft-on-crime policies to promote their particular interest further. For instance, a syndicate of past-offenders could vote for policies that would loosen drug-related regulations. There are also concerns that disenfranchised criminals would participate in election crimes.



The first assumption is rather broad, and it assumes that all offenders have a hive mind mentality towards different facets of public policy. The US Supreme Court in Carrington v Rash states that the idea of excluding a section of society for the way they could potentially vote is constitutionally unsound. The ballot box is sacred and pure. In the hopes of not undermining democracy, no external force should sway the direction voters will likely go to indirectly. For example, a conservative politician cannot simply block young people from voting in his/her district simply because he fears liberal and progressive policies.



The latter argument is unnecessarily precautionary because election crimes are usually conducted by people who are ineligible to vote. So it does not matter whether convicts are given the ban hammer from voting or not, because those that will commit election crimes are individuals that are already unable to vote to start with. Furthermore, after Trump's alleged calls of voter frauds in the 2020 election, a considerable amount of research regarding electoral fraud has surfaced. Unanimously, academics and electoral experts have stated that electoral fraud occurring in the United States is extremely unlikely. Provided that the U.S. has some of the most stringent felony disenfranchisement laws, this proves the latter argument moot.




Conclusion

There are political and sociological reasons to explain why retributivism is the theory of punishment that resonates the most with voters. The general public wants strict laws that punish crime-doers heavily. However, there are some considerations on why the views of the public might be flawed.

  • The public is mostly fueled by sensationalist news which only recollects the most serious offenders;

  • There is an under-estimation of how severe the sentences are actually imposed. Home detention is not as fun as it sounds;

  • A very simplistic view that if crime rates are going up, that means we are not punishing or scaring people with the threat of prison enough.


With those considerations in mind, felony disenfranchisement laws are an ineffective and overly simplified form of sanction. It causes more harm than good towards the ultimate goal of rehabilitation and restoration, which should be the aims of many justice systems worldwide.





Journal articles, books, gov. department websites and essays

  • Jessica Focht-Perlberg, “Two Sides of One Coin - Repairing the Harm and Reducing Recidivism: A Case for Restorative Justice Reentry in Minnesota and Beyond” (2009) 31 Hamline J. Pub. L. & Pol. 219 at [232].

  • John Braithwaite, "Crime, shame and reintegration" (1989) Cambridge University Press edition.

  • Guy Hamilton-Smith and Matt Vogel “The Violence of Voicelessness: The impact of Felony Disenfranchisement on Recidivism” (2012) 22 Berkeley La Raza L.J 407 at 413.

  • Jeff Manza and Christopher Uggen, "Locked Out: Felon Disenfranchisement and American Democracy (Studies in Crime and Public Policy)" (2006) Dedi Felman edition.

  • Mary Sigler, "Defensible Disenfranchisement" (2014) 99 Iowa L. Rev. 1691.

  • Marc Mauer "Why Are Tough on Crime Policies So Popular" (1999-2000) Stanford Law and Policy Review 9.

  • Cornelia Koch and Lisa Hill, "The Voting Rights of Incarcerated Australian Citizens" (2011) Australian Journal of Political Science 46(2) at [213-228].

  • ACLU, "Felony Disenfranchisement map" at https://www.aclu.org/issues/voting-rights/voter-restoration/felony-disenfranchisement-laws-map?redirect=votingrights/exoffenders/statelegispolicy2007.html.

  • Ministry of Justice, "Regulatory Impact Statement: Prison Voting" (25 February 2020) at [8].

  • Jeffrey Reiman "Liberal and Republican Arguments Against the Disenfranchisement of Felons" (2005) Criminal Justice Ethics Volume: 24 Issue: 1 Dated: Winter/Spring at [3-18].

  • BBC, "Prisoners will not get the vote, says David Cameron" (2012) at https://www.bbc.com/news/uk-politics-20053244.

  • Ed Chung, Betsy Pearl, and Lea Hunter, "The 1994 Crime Bill Continues to Undercut Justice Reform—Here’s How to Stop It" (2019) at https://www.americanprogress.org/issues/criminal-justice/reports/2019/03/26/467486/1994-crime-bill-continues-undercut-justice-reform-heres-stop/.

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