Prisoners' right to vote appeal goes to Europe
The Government is appealing against a European ruling that prisoners should have the right to vote.
Britain is breaching human rights law by barring prisoners from casting their ballot, the European Court of Human Rights
in Strasbourg says. The Government was forced to pay out £8,000 in costs and expenses to John Hirst who is serving a life
sentence for manslaughter at an earlier hearing.
It is now appealing against the ruling at a hearing before a 17-judge Grand Chamber.
Britain's 1983 Representation of the People Act does not allow convicts to vote in parliamentary and local elections.
Mr. Hirst, 53, mounted a legal challenge when his application to register to vote was turned down.
The High Court rejected his claim that Section 3 of the act is incompatible with the European Convention on Human Rights,
to which Britain is a signatory.
But his lawyers argued in Europe that he had the right to vote under the convention's guarantee to the "right to
free elections", the "right to free expression" and "prohibition of discrimination".
The European judges delivered a unanimous verdict that denying a prisoner a vote does breach the "right to free elections"
set out in the convention. There was therefore no need, they said, to pass judgment on the issues of free expression and discrimination.
Mr. Hirst pleaded guilty on Feb 11, 1980, to a charge of manslaughter on the grounds of diminished responsibility. He
was sentenced to "discretionary life imprisonment" and the tariff part of his term - the part relating to retribution
and deterrence - expired on June 25, 1994.
But Mr. Hirst remains in jail because the Parole Board says he could still present a risk of serious harm to the public.
A final verdict on the appeal will be delivered later this year.
'Part-time prisoners' given vote
Offenders serving "part-time" prison terms will be allowed to vote in the general election if they are not in
jail on 5 May, the BBC has learned.
The decision affects about 40 whose sentences are split between jail and the community.
The development comes as a government appeal against a European ruling that prisoners have voting rights has begun.
Officials say a general ban on voting is a legitimate part of punishment.
Last year prisoner John Hirst, 53, won a challenge at the European Court of Human Rights that current rules denying prisoners
a vote breached their rights.
A final verdict will be delivered later in the year.
The government argues that people who commit crimes serious enough to warrant a custodial sentence should forfeit the
right to have a say in how their country is governed.
But the Department of Constitutional Affairs has disclosed that an exception will be made for those on the intermittent
custody scheme, where offenders spend part of the week in jail and the rest of the time in the community.
This really opens the door, I think, to governments saying prison doesn't have to be about civic death. Prison Reform
BBC correspondent Danny Shaw said that with only 40 prisoners involved in the scheme, the numbers voting were unlikely
to be large enough to affect even the most marginal of seats.
But the move had set a precedent, he added.
Juliet Lyons, director of the Prison Reform Trust, said the decision "opens the door to governments saying prison
doesn't have to be about civic death".
"Instead, prison is about reform, rehabilitation, about becoming a citizen and staying a citizen," she told
BBC Radio 4's Today programme.
"In most council of European countries, prisoners simply can vote."
It was "excellent" to see the government taking a decision itself rather than being "pushed into it"
by Europe, she added.
On Tuesday, government lawyers began their appeal in the Hirst case before a 17-judge grand chamber of the European Court
of Human Rights, in Strasbourg.
Hirst is currently serving a life sentence for manslaughter at Rye Hill prison, Warwickshire.
[Education] is the overwhelming importance of our prison system... because most of our prisons are dens of idlement
In 2001, he lost his claim for voting rights in the High Court in London.
But last April, a European Court of seven judges agreed with him and ruled that the government had breached his human
He was awarded £8,000 in costs and expenses.
Former Conservative prisons minister Anne Widdecombe said that affording prisoners the right to vote would do nothing
to stop most prisons being "dens of idlement".
Reforming prisoners was not about "giving them a say in how the rest of us are governed", she told BBC Radio
4's Today programme.
"You should worry about things like literacy, numeracy, qualifications and the structure of an ordinary working day."
That was the "overwhelming importance of our prison system", she added.
15 January 2003
Voting Rights For Prisoners and Ex-Prisoners in New York
Talking Points for CSS
“[Ex-Offenders] are as much affected by the actions of government as any other
Citizen, and have as much of a right to participate in governmental decision-making.
Furthermore, the denial of a right to vote to such persons is a hindrance to the efforts of
Society to rehabilitate former felons and convert them into law-abiding and productive
Justice Thurgood Marshall
Richardson v.Ramirez (1974)(dissenting)
The Problem --In Legal Terms
. New York state law prohibits persons with felony criminal convictions from
exercising the franchise. These laws deny the vote to all persons who are currently
incarcerated with a felony conviction and all such persons formerly incarcerated who are
still serving a sentence of parole. In some cases, a court can sentence a person to
incarceration and lifetime parole, effectively disenfranchising a person forever.
. However, persons who are convicted of a felony in New York who are sentenced to a
conditional or unconditional discharge (formerly called suspended sentence),or who are
sentenced to probation, are not deprived of their voting rights. Incarceration triggers the
denial of voting rights.
. States are free to establish qualifications for voter eligibility.However,when its
policies are enacted with a discriminatory purpose to harm racial minorities, or in some
cases when the policies have the effect of minimizing minority-voting strength, then
federal law requires a remedy.
1.The Problem – Legal History in New York
. New York, like so many other states, enacted the precursors of these laws at a time in
American history when de jure racial discrimination against African Americans was
. Dating back to 1777 the New York Constitution limited the franchise to property
holders and free men. As soon as more Blacks became property holders the State ’s
constitution was changed explicitly to exclude Blacks from voting in 1801,and even
when some restrictions were relaxed,new,more stringent property requirements were
applied in 1821only to racial minorities.
. By this time conviction of an “infamous crime ” was a disqualifying feature of our
voting laws in the State and by the mid 1840s,the delegates to the constitutional
convention explicitly claimed that Blacks were unfit for the suffrage because they were
thirteen times more likely to be convicted of “infamous crimes ” than whites. It took the
Civil War and the passage of the 15
Amendment to the U.S.Constitution to nullify these
New York laws affecting voting.Nonetheless,New York, as did so many Southern
states during Jim Crow,re-enacted the “infamous crime ” disqualifying element of our
. The history of official discrimination against Black and Latino voters in New York is
not a feature of historical events alone. It continued throughout the 20
Century with the
passage of literacy tests for voters, English-only election procedures, and racially
discriminatory rules for purging voters. It took Congressional action to try to restore a
fair election structure in New York with the passage of the Voting Rights Act of 1965
that targeted three counties in New York City for special protections against
discriminatory voting laws and policies. That law still applies, and is viable, today.
The Problem From a CSS Perspective
. The ability of poor communities in the City to collectively force public policy to
address their unique needs depends, in large part, on the political influence they can
. It is part of the CSS mission to empower poor communities to engage in the political
process and realize their full potential for fair and just policies.
. The face of poverty has changed dramatically in the 150 year,CSS history of fighting
poverty and strengthening New York. At this time, one cannot address the needs of the
poor without addressing the legacy of racial discrimination against Black and Latino
communities in light of the convergence of poor marginalized families and Black and
Latino segregated neighborhoods.
2.. During nearly two decades of aggressive,non-partisan,voter registration and get-out-
the-vote activities,CSS has confronted the reality that the criminal justice system
intersects directly with our representative form of government in ways that have impeded
the full and fair participation of poor neighborhoods in the body politic. All of our good
work, from mobilizing the poor to vote to legally challenging discriminatory vote purge
laws, continues to run against this obstacle that deprives our voters of their fundamental
. As the criminal justice system operates to disproportionately incarcerate Blacks and
Latinos, the net effect is to disproportionately minimize and suppress the Black and
. And when the State ’s policies on law enforcement results in the over-concentration of
incarceration rates in specific Black and Latino neighborhoods, that are economically
distressed, the City as a whole suffers for it fails to rectify the devastating consequences
of using incarceration as a mechanism of social control.
. There has never been a period in U.S.history that has experienced the use of
incarceration of our residents as we have today. Over 4 million Americans were either
behind bars on felony convictions, or because of a prior conviction, were ineligible to
vote in the 2000 national elections.
. The rate of incarceration in America is 686 out of 100,000,ranking the U.S.number
one in the world behind the Russian Federation (670),Cayman Islands (600),Belarus
(554)and the Virgin Islands (551).
. Being first in the world for incarcerating our residents has been the subject of some
critique from other nations as this except from a Canadian report indicates:
“The American incarceration rate is one of the highest in the world, but it has not
made the United States a safer place to live. The murder rate in the United States
at 6.7 per 100,000 surpasses that of every other industrialized country in the
world. Canada ’s murder rate by comparison is barely 2 per 100,000.The
United States is a good example of what happens when governments rely too
heavily on incarceration.”www.csc-scc.gc/ca
. In New York the rate of incarceration is 574 out of 100,000,which if ranked
independently would put New York fifth in the world when you factor in Texas as well
(which would be the highest in the world with a rate of over 1,000 per 100,000).
. From the 1970s to 2000 the nation ’s inmate population increased fivefold and with
clear racial implications. The so-called “war on drugs ” ((actually a “war on poor people
who use drugs ”)has had a clear impact on people of color. In general, persons
3.incarcerated for drugs rose from 40,000 in 1980 to almost 500,000 today and Blacks and
Latinos constitute 4 out of every 5-drug offenders in state prisons, even though drug use
is more prevalent by whites.
. Nationally,1.4 million African American men,13%of Black men, are disfranchised,
a rate seven times the national average.
. In New York, Blacks and Latinos are prosecuted, convicted and sentenced to
incarceration at rates substantially disproportionate to whites. Blacks compose 16%of
the State ’s population but make up over 54%of the State ’s current prison population and
50%of those on parole in New York.Similarly,Latinos compose 15%of the State ’s
population but are 27%of the prison population and 32%of those on parole. By contrast,
whites compose 62%of the State ’s population but only 16%of the prison population in
. Blacks and Latinos are sentenced to incarceration at higher rates than whites in New
York and whites are sentenced to probation at substantially higher rates than Blacks and
Latinos. For example, in 2001 whites made up approximately 32%of total felony
convictions, yet comprised 44%of those who received probation and only 21.4%of those
incarcerated for felony convictions. By contrast, Blacks made up 44%of those convicted
of a felony but only 35%of those getting probation and over 51%of those sent to prison.
Latinos comprised 23%of those convicted of a felony, yet only 19%of those sentenced
to probation and almost 27%of those sentenced to prison.
. The bottom line in New York is that collectively, Blacks (52%)and Latinos (35%)
comprise nearly 87%of all people currently denied the right to vote because of the
State ’s denial of voting rights to incarcerated and formerly incarcerated felons.
. The 2000 Census counted 71,466 prisoners in New York State. In 2003 the state
reported 56,719 people on parole in New York State.
. Approximately 80%of the State ’s prison population consists of Blacks and Latinos
from the following New York City communities:
Lower East Side
Mauritania Sound view
East New York
4.. More than 630,000 inmates in the U.S.were released from prison after completing
their sentences in 2002,the largest number of parolees ever released in history. In New
York City the estimates are that for the next five years approximately 40,000 prisoners
will be released each year, nearly all of them to their home communities (as listed above).
On a national scale, researchers have noted that with the disadvantages they face in the
labor market, and the variety of restrictions on their ability to obtain publicly supported
housing and governmental benefits (see below)about 66%of those released will be
rearrested within three years.
. Eighteen European democracies permit incarcerated prisoners to vote, as does South
Africa and Canada and Puerto Rico.In the U.S.only two states permit felons to vote,
even while incarcerated:Vermont and Maine.
. Only in the U.S.are non-incarcerated persons with felony convictions (i.e.those on
parole,probation or a form of conditional discharge)prohibited from voting.No other
democracy does this.Equally important,of all the disfranchised felons in the U.S.in
2000,only 26%are in prison.That is,nearly three-fourths of all disfranchised felons in
the country reside in their communities,pay taxes,and are prohibited from having a say
Voting:One of Many Invisible Punishments Given to Our Prison
. At the same time that our prisons and criminal justice supervision have reached
historic highs in the U.S.,our elected officials have enacted numerous laws and
regulations that have diminished the rights and privileges of citizenship and legal
residency in our country.The effect of these policies is the creation of a modern day
version of “civil death ” from medieval times where offenders are considered unworthy of
the benefits of our society and effectively excluded from the social compact.
. The author Jeremy Travis coined the phrase “invisible punishments ” to describe this
litany of devastating consequences that flow from a criminal conviction because 1)
these laws are virtually invisible to the public,yet have serious consequences for poor
communities;2)they take effect outside of the criminal sentencing court,often unknown
to the judge and the prisoner alike,and are never accounted for in any debate on
sentencing reform;and 3)they are enacted often as amendments or riders to other bills,
never codified in one place,and always championed by self-righteous politicians who
want to gain favor with the masses by attacking an easy,marginalized segment of our
. Invisible punishments include:
A lifetime ban on eligibility for benefits under TANF and Food Stamps for any
person with a felony drug conviction,courtesy of President Clinton ’s welfare reform bill;
some states like New York have opted out – but not completely ((e.g.,in NY,if you ’re on
treatment you can qualify – but treatment options are scarce)).
5.Public Housing has adopted a “one strike,you ’re out ” policy for drug convictions
and federal law authorizes states to deny Section 8 housing as well for persons with
convictions within a “reasonable time.”
Careers requiring licensure are also excluded from the options a former convict
may have.In New York many career licenses are not available to this population,such
as,real estate,plumbing,barbering,notary public,etc.
The Problem &Public Opinion Polls
. In Gallup polls taken between 1989 and 2000,between one-half and two-thirds of
respondents favored education and jobs to address the “social and economic problems
that lead to crime ” and between one--quarter and two-fifths favored more prisons,police
. In a survey published in 2002 by researchers Manza,Brooks and Uggen,support for
voting rights for Ex-felons (a generic label)was highest (80%)than it was when the
specific crime was attributed to the ex-felon,such as Violent Crime felon (66%)or White
Collar felon (63%)or Sex Offense felon (52%).Nonetheless,the survey supports the
remarkable conclusion that there is majority support for the enfranchisement of ex-felons.
Stated another way,stripping away the vote from citizens who are convicted of a felony
is viewed as too harsh a punishment in a democratic society accustomed to universal
. Focus group results in Florida in 2001 sponsored by the ACLU,among moderate to
conservative white,Black and Latino voters revealed that:1)A small majority supports
re-enfranchisement of voting rights;2)Persuadable voters focus on accountability and
include rehabilitation as a requirement;3)Racial arguments are less persuasive,even
among black voters;4)The best case on accountability and rehabilitation is to tell stories
of those who committed crimes as young adults,but who have paid their debt and gone
on to become productive community members.
The Prison Industrial Complex and New York Political Power
. In the U.S.today there are more prisoners than farmers.And while most prisoners in
America come from urban centers,most prisons in America are in rural areas.
Along with casinos,huge hog or poultry “factories,” prisons are one of the three leading
rural economic enterprises.
. All prisons in New York built since 1982 have been built in upstate New York.
. Approximately 20%of the prisoners in New York are from upstate New York but
91%of the prisoners are incarcerated there.
6.. And yet the economic benefits to these rural communities are illusory as researcher
Tracy Huling points out:
._The majority of public prison jobs do not go to local community members.
Educational qualifications exclude many of these applicants and seniority in
the corrections workforce works to the advantage of veteran personnel from
other prisons.This is consistent with the general competitiveness of jobs in
the rural market where workers are more than willing to commute great
distances,thus expanding the labor market,for any job.Of the 750 jobs
generated by a prison in Malone,NY,less than a hundred went to residents of
._Privatization of the prison industrial complex does not ameliorate the negative
effects of relying on out-of-town job seekers because the turnover rates for
personnel in private correctional system is notoriously high,3 times the rate
than for public prisons.
._Prisons also fail to generate significant retail development.They attract chain
stores (McDonalds,Wal-Marts)and displace locally owned businesses while
simultaneously failing to create any net increase in tax revenues because profit
dollars are not reinvested by these large chains in ways that local profit dollars
._The elderly and the poor in rural communities often face economic pressures
in the housing markets as rental and land value increases when the prison is
sited initially only to fall dramatically when the real number of actual local
jobs is realized.Rents,once raised,never fall.
._Prisoners working in community projects in the host community end up
displacing low-wage rural workers.In Coxsackie,NY (with 2 state prisons
and thousands of inmates)prison work crews do all types of labor that would
otherwise go to low-income workers from rural communities from painting a
community center to putting down a new roof for the town hall.
._Local court and police forces must now budget for the increased business that
indigent prisoners generate since most jurisdictions rely on county public
defenders to defend poor inmates accused of crimes within state prisons.And
towns with privatized prisons have much higher rates of inmate assaults than
._Racial tensions are exacerbated by the siting of these facilities in rural,white
areas.Racism is pervasive in rural prisons.“Beyond the obvious parallels of
using black bodies to sustain white rural economies,we are setting ourselves
up,over the long term,for greater racial tensions in this country.Prison walls
cannot and will not contain the racial hatreds generated within them.” Kelsey
._Upstate New York advocates have recognized some of these negative
consequences and have decried the irreversible stigma that is place upon a
town that becomes known as a prison town,and the inability of that same
town to attract a Fortune 500 company,or software company or to develop
any significant tourist trade.
7.. The Census counts everyone as of where they slept on Census Day April 1
purposes of reapportioning U.S.Congressional seats (e.g.,between California or New
York)the exact location within a state is irrelevant.But for New York State to allocate
political power between regions of New York via newly redistricted Assembly and
Senate lines,that Census methodology deprives New York City of dollars and political
. The Census data regarding prisoners is clearly inaccurate because it does not reflect
where they live.
. The decision by New York to rely exclusively on the Census data to determine
political representation within the state undermines the growing Black and Latino
political strength of New York City neighborhoods;provides increased federal dollars to
upstate communities that are taken from the inner city;and creates a perverse form of
representative government where upstate legislators enjoy the benefits of the increased
numbers prisoners represent but can ignore their needs because they are prohibited from
. In Coxsackie,NY the fact that prisoners there earn no income drove down the median
income of the town and made it eligible to receive more federal dollars from HUD.
The Problem and the War on Drugs
. Over $5 billion dollars is spent every year to imprison persons with drug related
convictions and three quarters of that are used for persons who have never committed a
. 27%of all persons convicted of drug offenses are convicted of simple possession,not
selling nor intending to sell.
. Yet in many states,like New York,non-violent offenders are serving 15 years or more
at a minimum cost of $50,000 for each new prison cell,and $20,000 per year for each
. Tough-on-crime policies,combined with our so-called War on Drugs,have resulted in
a host of mandatory minimum sentencing laws and longer prison terms for all drug
related offenses.This in turn,has shifted the balance of power to prosecutors in the
criminal justice system.Unbridled prosecutorial discretion has always been used as a
weapon in Black and Latino communities (and when racial minorities are the victims of
police brutality or racial violence,this discretion is hardly ever used in their favor).But
the advent of mandatory sentences and longer prison terms have effectively neutered
8.judges as significant role players and reduced the role of defense attorneys to
mathematicians,not advocates.Add the fact that defendants plead guilty in 90%of all
criminal cases – a process that can only enhance the power of the prosecutor – and most
students of the system recognize that the balance in the adversarial process in our
criminal justice system is tilted towards the prosecution.
The Problem and Women
. Women are the fastest growing segment of the American prison population.In 1980
12,000 women were incarcerated (3.9%of all prisoners),by 1999 the figure was 90,000
or 6.7%of all prisoners.In just the 1990s,the number of women prisoners more than
doubled (110%)compared to an increase of 77%for males.
. In the 1970s almost half of the states did not even have separate facilities for women,
as the system was virtually all male – 97%%male.
. Using 2000 figures,Texas (once again)leads the nation wilth 12,714 women in prison
followed by California (11,432),Florida (4,019)and New York (3,423).
. At these rates,5 out of 1,000 white women can expect to go to prison,but 36 out of
Black women,and 15 out of every 1,000 Latinas can expect to go to prison.
. Over half (52%)of women in state prisons have reported being abused physically or
sexually before entering prison – the comparable rate for men is 16%%.
. Even though crime has declined in recent years in the U.S.(as per data on arrests or
reports of victimization)imprisonment of women has risen.Some researchers (Karen
Heimer among them),have noted that the deterioration of the social welfare state has had
a particularized impact on women more than men.That is,considerable deterioration of
women ’s economic circumstances,especially for single heads of households,along with
the litany of invisible punishments given to all convicts,may force women to look toward
crime as survival,in ways that men have done for years.
. The “war on drugs ” has also been played out in a way that disproportionately harms
women.The proportion of women serving time for violent offenses has declined steadily
from 1979 (49%)to 1998 (29%).In 1979 one in ten women in U.S.prisons was jailed
for drugs,in 1998 the ratio was one in three.Equally important,the women swept up in
the “war on drugs ” are simply minor players in the drug trade..Human Rights Watch
studied the rates in New York State and concluded in 1997 that our Rockefeller drug laws
incarcerated 44%of all women prisoners how had never been imprisoned before,and
17%who had never even been arrested before.
. As minor players in the drug trade women are often unable to effectively plea bargain
with prosecutors because they have no information that would be useful to other
prosecutions.Women must also confront a reluctance to testify against their husbands
and boyfriends who may also be involved in the drug scheme,further hampering their
ability to avoid mandatory minimum sentences.
. Since women are often the sole custodial parent in their households they face a
“double punishment ” once convicted::jail time and the possible termination of their
. Few correctional institutions support mothers in prison in their parenting role,despite
the evidence that parenting may be central in a woman ’s rehabilitation.