The ghosts of the civil dead

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 ...