--- layout: post status: publish published: true title: Prisoner Rights, Overcriminalisation and Reform in Democracy wordpress_id: 795 wordpress_url: https://www.martineve.com/?p=795 date: !binary |- MjAxMS0wMi0xOCAxNDo0NDoyNCArMDEwMA== date_gmt: !binary |- MjAxMS0wMi0xOCAxNDo0NDoyNCArMDEwMA== categories: - Politics - Academia - Philosophy - Michel Foucault tags: - Foucault - politics - Prison - Votes - Democracy comments: - id: 6182 author: Bill author_email: neoliminal99@hotmail.com author_url: '' date: !binary |- MjAxMS0wMi0xOSAxNjowNTo1NCArMDEwMA== date_gmt: !binary |- MjAxMS0wMi0xOSAxNjowNTo1NCArMDEwMA== content: I do not like the idea of prisoners being able to vote. I consider that loss of certain civil rights, for the duration of their incarceration, to be part of the punishment. If the persons who burgled my house where ever caught, I would like to see them disenfranchised for life. I'd like to see them hang, so I am hardly objective. To prevent prisoners from voting presents more problems than in solves. I would grudgingly allow prisoners to vote. The only exclusion should be people who have commited crimes against the electoral system itself. The broader issue is that of the power of a European court to influence national laws. - id: 6183 author: Martin Paul Eve author_email: martin@martineve.com author_url: '' date: !binary |- MjAxMS0wMi0xOSAxNjoxOToyMyArMDEwMA== date_gmt: !binary |- MjAxMS0wMi0xOSAxNjoxOToyMyArMDEwMA== content: ! "Interesting; I didn't have you down as a hang 'em high type.\r\n\r\nUsing the example of theft, though, there have been even in the last hundred and fifty years varying definitions. Pierre-Joseph Proudhon wrote, in a somewhat cyclical statement typical of his anarchism: \"property is theft\". If he were the lawmaker, you could be hanged by your own logic of possession and prosecution of those who would \"redistribute\" it. In a less extreme case, were you imprisoned with no right to vote under this system, how would you ever have a chance to vote to change the law so that you were not criminalized?\r\n\r\nAs far as national sovereignty is concerned, this is a complex matter to which I have a simplistic, overly-utopian response: I do not fly a nationalistic flag, I think it breeds ridiculous Schmittian hostility on a false inside-outside rhetoric. Instead, it seems to me that the bounds of sovereignty are set entirely artificially (how far down the chain do we kowtow to an overarching legal structure? Street level? Borough level? National? International?)." - id: 6184 author: Bill author_email: neoliminal99@hotmail.com author_url: '' date: !binary |- MjAxMS0wMi0xOSAxNzo1MzozNSArMDEwMA== date_gmt: !binary |- MjAxMS0wMi0xOSAxNzo1MzozNSArMDEwMA== content: ! "To qualify my stance on capital punishment, I am absolutely against it. For a few months after we were robbed I would have reintroduced the death penalty for anything from burglary to over-due library books. I recognise this desire for vengeance as transient, part of the mixed emotions of fear and powerlessness that the burglars engendered. \r\nI agree with the view that nationalism breeds hostility and that the bounds of sovereignty are set artificially. In a utopian society we would all act as sovereign individuals. I do not know if that could ever be achieved given the status quo." - id: 6185 author: Martin Paul Eve author_email: martin@martineve.com author_url: '' date: !binary |- MjAxMS0wMi0xOSAxOTo0ODoyMSArMDEwMA== date_gmt: !binary |- MjAxMS0wMi0xOSAxOTo0ODoyMSArMDEwMA== content: ! "Hi Bill,\r\n\r\nThanks very much for this qualification. I think this actually demonstrates the need for the state as a regulatory mechanism of, instead of perpetuator of, this vengeance which should, as you say, be transitory. I fully admit that the greater the magnitude of the crime -- I can, fortunately, only imagine what it is like to lose someone as a result of murder -- the greater this vengeance drive will be, and this is justified as an individual feeling. It is not, in my view, justified as a practice. In this way, the state functions as a necessary \"evil\" to logically, or at least intersubjectively, regulate our transitory affects.\r\n\r\nIndividual sovereignty is, as you rightly say, a hugely complex and probably unimplementable state of affairs. That said, I would have been hugely interested to have seen a SCOTUS ruling on the Ehren Watada case which would have demonstrated whether the US would implement Nuremberg logic for its own soldiers.\r\n\r\nThanks, as ever, for your insightful comments,\r\n\r\nMartin" ---

Prison Cell
Image credit: Still Burning under a CC-BY-NC license.

Perhaps one of the strongest arguments for universal suffrage, even among the convicted populous, can be taken from our recent history. There has been, in recent times, an over-identification of the law with absolute moral right. However, the imperfection of this equation can be clearly seen in two examples from the UK's recent history: in 1967, a person could be sent to prison for being gay and before 1991 a man could legally rape his wife. Given that we acknowledge that democracy accords the populous the right to vote for its laws, but that these laws are in flux and require amendment through this very democratic function, we must ask: why are we so arrogant as to believe that those currently criminalized will always, and should always, so be?

To take this example a little further. At present, in the UK, legislation has been put in place to provide the option of civil partnerships in place for gay couples and debate is taking place around gay marriage. Although there are those polarized on the issue (I'm not talking about the bigots, but rather those within the gay community itself who see it as potentially ceding to a bourgeoise sexuality -- although why shouldn't this be an option?), to consider that forty four years ago you could be imprisoned for this offence raises serious questions as to the self-satisfied nature of the 1983 Representation of the People Act.

The argument that convicts have forfeited their right to participate in society is also somewhat flawed. The structures that determined their right to participate were selected by the majority through democractic process. By systematically eliminating people from the pool of those who can choose the law, the tyranny of the majority serves as an echo chamber: it cannot be progressive because those criminalized have no voice. By all means, deprive those who transgress of their liberty on grounds of deterrent, public protection, or merely vengeful punishment. If, however, we truly believe in democracy, then it is imperative that we do not deprive anybody of the right to vote.

Furthermore, of what, exactly, are we so afraid? I have argued that there is a relativism at stake in all legal systems, but some laws are more relative than others. It seems hugely unlikely that the populous would ever vote in favour of a government which would legalize out-and-out murder (I've qualified that, for I fear quite a few would vote in favour of murder through the death penalty). Therefore, if convicted murderers were to vote for such a regime, we can rest assured that it would never achieve critical mass. In short: representation is only an issue for crimes in what could be termed the "relative zone"; those that have been in flux for millenia. We cannot afford the positivist complacency that we have moved beyond this flux.

While discussion on implementation of the EU ruling on this topic has focused on issues of national sovereignty, and also criticism of those who support the right of prisoners to vote for putting forward feeble arguments, I would argue that there are more fundamental issues of democracy at stake here. By denying those who are criminalized the opportunity to partake in the process of reform, democracy is little more than a façade wherein all crimes become political. If we are to believe in democracy – and one of the oft-cited arguments is that democracy is the only system capable of overthrowing itself – we must allow those with dissenting voices, even those on the other side of the law, to vote on the exact issues that criminalized them. We must move beyond a simple desire to dehumanise criminals by punishing, punishing, punishing, move beyond a simplistic, universal, unchallengeable respect for the law (at its most extreme, Nuremberg showed the world, despite its morality of the victor, the double-bound duties of the citizen to the law and unspecified ethical principles) and instead engage in rational, democratic discourse that acknowledges the morphology of the legal structure.

As Michel Foucault once put it: “They tell us that the prisons are overpopulated. But what if it were the population that were being overimprisoned?”