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The subject of human rights for prisoners generates ardent debate in contemporary society. The status of criminals in regards to their involvement with the law remains unclear. On the one hand, individuals who have broken the law have been isolated from the rest of society in order to prevent them from causing more harm and to punish them for their misdeeds.1 At the same time, the inhumane treatment of prisoners by the justice system makes it that the punishment often outweighs the crime. Prisoners are not allowed to vote, have trouble voicing their complaints and protest about unfair treatment, and are subject to direct breaches of human rights, being exposed to torture, rape, and exploitation by inmates and by the prison personnel.2
As a result, criminals are expelled from their civic duties, traumatized by inhumane treatment, and leave the “correctional facilities” as deeply broken individuals. Human rights watch is required to create a standardized list of rights and guarantees that should affect both domestic and international institutions in order to ensure the application of basic human rights, such as the right against torture, the right of equality before the Law, and the right to vote (under the right for Democracy).3 At the same time, the status of a prisoner as a citizen must be thoroughly investigated.
Background of the Issue
For the greater part of humanity’s history, being a prisoner meant the effective abolition of all and any human rights extended by the state to the rest of its citizens. The popular view on the matter was that if an individual commits a crime, he or she was effectively exempted from any protection provided by the government to its people. In the early ages of antiquity, the first codes of law were largely based on the rule of vengeance. The Code of Law of Hammurabi, as the first recorded law that considered the treatment of convicts, introduced the famous rule of “an eye for an eye.” 4 If an individual caused bodily harm to another through ill intent or negligence, he or she would suffer the same treatment, often at the hands of the person they hurt. Such a rule was very simplistic and violated one of the crucial human rights, such as the right against torture. The right to live was also violated frequently, as the only satisfactory resolution to a murder (either on purpose or through negligence) was the death of the culprit.
The Greek and Roman laws were more elaborate and offered certain rights and protections to the criminals found guilty by the judges. In an event where the crime was of economic nature, such as debt and property damage, it was quickly discovered that locking up or injuring a person would not help compensate for the damage in any meaningful ways. Debtors and vandals, as such, were often made slaves in order to pay for the damages. Although such practices violated the prisoner’s right to freedom, they also provided certain protections, as the relationships between slaves and masters were regulated by the Greek and Roman codes of law.5
During medieval times and all the way up to the second half of the 20th century, the rights of prisoners were largely absent from the political and legislative conversation.6 The prison was viewed by the general public as a place of punishment or a purgatory. It was supposed to intimidate the average citizen and prevent them from committing crimes through fear. Those who ended up on the wrong side of the law had to suffer both mentally and physically for their transgressions. Corporeal punishments, sexual abuse of prisoners, high death rates, and virtually no control over what happened inside the prison walls were typical. The only exceptions were made to prisoners of great wealth and nobility, whose rights as human beings were respected to a degree due to their outside connections.
In the US, the situation regarding prisoner rights was ambiguous up until 1974.7 The prisoners were considered slaves of the state, with no specific laws and regulations made to regulate their relationships with the supervisors or other inmates. Courts of law refused to handle cases regarding inhumane treatment and prisoner rights due to the ambiguous legal status of the prisoner. The argument was that, if the prisoner does not have any discernable rights, the regular application of law (which exists to protect individual rights) would not be appropriate. This changed in 1974 when the Supreme Court ruled out that prisoners did not lose all of their constitutional rights, such as the right to live and the right against torture.8
Prisoners in the US are still considered citizens.9 At the same time, these citizens do not enjoy the same rights and freedoms when compared to free citizens. The prison system, by definition, suspends certain rights of individuals, such as the right to personal freedom. However, prisoners return certain human and constitutional rights in order to alleviate their condition. The right against torture and the right against cruel and unusual punishments protects prisoners from certain conditions in prisons, such as overcrowding, torture, and unsanitary conditions.10 Prisoners are obligated by law to provide a minimal standard of living to all prisoners and are no longer allowed to use corporal punishments as a means of discipline. Violence is to be used in a measured way and only when an inmate is threatening public order or disobeying direct commands from their supervisors. In addition, prisoners receive protection against discrimination and the right to practice their religion freely. Lastly, all prisoners have the right to a fair trial and due process. However, the degree to which they can protect their rights inside the prison is limited by the Prison Litigation Reform Act of 1996, which prevents the prisoners from filing litigation attempts against the prison and its wardens until all administrative measures of improving the situation are exhausted.11
The definitions regarding the subject at hand are as follows:12
- Prison sentence. A measure implemented by the court with the purpose of detaining and isolating a criminal from the rest of society. A prison sentence has four main purposes: retribution, incapacitation, deterrence, and rehabilitation. A prison sentence is meant to be a punishment for a crime against society. By incapacitating a dangerous criminal, society protects itself against repeated offenses. By offering harsh punishments for crimes, a prison sentence effectively deters existing and future criminals from breaking the law. Finally, during the prison sentence, an individual must be taught skills to enable reintegration into society upon release.
- Prisoner. A citizen found guilty of a crime, whose rights have been restricted based upon the conditions of a prison sentence.
- Suffrage. The right to vote, which enables the individual to participate in the political life of the country and expressing their opinions in a democratic way.
- Disenfranchisement. The act of stripping a felon of their right to vote. Depending on the local legislation, disenfranchisement would end upon release or parole.
Conflict on Definitions
The main conflict on definitions, in this case, lies in the definition of purposes of the prison sentence. Although four purposes have been stated, it is not clear which purpose is the governing one, as the policy on prisons and prisoners changes with each passing administration. Before 1965, the main purpose of prisons was punishment and incapacitation. However, the introduction of the Prisoner Rehabilitation Act in 1965 significantly changed the domestic policy towards felons and introduced a variety of rehabilitation programs.13 Those programs were not popular among the general population, however, and the debates regarding whether prisoners deserve to be rehabilitated or not continue up to this day. Trump Administration’s First Step Act seeks to focus on the rehabilitation side of the prison sentence for individuals sentenced for minor offenses, such as drug usage, possession, and first-time distribution.14 However, this activity is focused on education and training rather than on the status of the prisoner.
Should Prisoners be Allowed to Vote?
The questions surrounding the prisoner’s rights to vote lay in the realms of both ethical and legalistic fields of study. While the right to vote is considered a fundamental human right, its implementation as a constitutional right remains an oblique prospect for the prisoners of many nations, including those sentenced in the US.15 The idea to allow prisoners to vote is not popular, and any politician to actively campaign for the rights of prisoners is likely to lose votes against candidates who advocate for acting hard on crime.
There are three main arguments against granting prisoners the right to vote. The first argument is that since the felon broke the law, they automatically lose their right and privilege to vote.16 This is a very old argument that has been around for at least a millennia. Until people started actively working for human rights and prisoner rights, the majority of prisons did not grant their felons any rights at all. The second major argument is that since a person broke the law, they should not be allowed to make laws. The common supposition is that prisoners would try to use their votes in order to get reduced sentences and make politicians bargain with the justice system for their votes.
The last argument is that felons are not informed enough to make a reasonable decision in regards to governing a country. It is notorious for prisons to limit the prisoners’ access to information. One or two major political parties sponsor the only channels available on public TV, and there are no rules or laws regarding access to different sources of information for prisoners. Thus, prisons have the potential to become political camps for whoever any individuals who are currently holding office. The US has over 2 million people in jail and over 5-7 million on parole, making it a substantial political force.17 The inability to vote, critics say, protects the prisoners from being used in political games.
However, these arguments can be rebuked from the legislative, ethical, and logical sides. The US was among the first nations to ratify the conventions of universal human rights. Article 29 of the UN convention of human rights states the following:18
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“In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” Allowing individuals to vote does not violate morality, public order, and respect for the rights or freedoms of others. This statement helps to understand the flawed nature of the first argument. Despite losing some of their constitutional rights, prisoners remain humans, thus entitled to every human right that does not violate the conditions of their sentence, in accordance with Article 29. As such, from a legal point of view, they should be allowed to vote.
The flaw of the second argument lies in the fact that it treats the law as a singular entity. In reality, there is a great number of laws that are applicable to almost any facet of our lives. While it is hypothetically true that an individual might vote on laws that benefit him or her and have the potential to reduce their sentence or allow earlier parole, such notions are not prohibited by the Constitution.19 At the same time, a prisoner who was arrested on charges of drug possession should not be excluded from deciding on the matters of internal policy, external policy, defense spending, prison spending, healthcare reform, and many other areas that would affect his or her life both inside and outside of the justice system.
The last argument regarding the qualifications of prisoners to vote is simply undemocratic. Our current legislation does not have any qualification tests for being allowed to vote to save from the qualification of biological age. This notion is reinforced by the Voting Rights Act of 1965, which states that all disabled individuals are to receive assistance from their person of choice and be allowed to vote.20 In addition, the Voting Rights Act (VRA) strictly prohibits the conditioning of the right to vote on passing a test. In other words, people are allowed to vote wrongly and not on how well-informed or mentally capable they are. The basic principles of the VRA can be easily translated to the situation with prisoners. Under the democratic system, people are allowed to make “wrong,” “self-serving,” and “uninformed” choices about public policy.
The conversation about voting rights for prisoners should be based on the notions of Article 39 of the Universal Human Rights Convention. Clear definitions regarding morality, public order, and the general welfare must be provided and introduced into a legal context. As it stands, all three definitions are too vague and can represent a variety of issues. It is possible to argue the morality of giving all and any human rights to a serial killer or a rapist. At the same time, denying everyone voting rights based on a relative minority of incarcerated individuals is morally wrong. In the US prison system, over half of inmates are being held for non-violent crimes, such as drug possession, property crimes, disturbances to the public order, as well as detentions pending a trial.
At the same time, the prisoner population is one of the most vulnerable populations in the country due to limited mobility, complete dependence on their incarcerators, and restricted civil rights. Society has the potential to arbitrarily alter punishments, funding, supply, medical care, and other amenities provided to prisoners. It is also capable of changing laws regarding their sentence at will. At the same time, prisoners are considered one of the most hated subpopulations due to their real or perceived slights. Thus, the right to vote serves as the only protection against the tyranny of the majority.
Lastly, despite the objections and worries that prisoners might turn the tide of large-scale elections, the prisoner population constitutes less than 1% of the entire population of America. By definition, there is no such thing as a “wrong vote,” meaning that public order and general welfare would not be affected by their decisions. Thus, we have determined that withholding voting rights for the majority of the felons is immoral, that practicing these rights is necessary, and that it will not cause any civil disturbances.
What Should Be Done?
As it was already stated, the decision should not be based on the ever-changing and subjective notions of justice and morality but rather on the basis of a contribution to society, general welfare, and public order. Prisoners that are kept in custody are already isolated from the rest of society in a physical way and cannot affect society in a negative way any further. As it stands, the matter of voting for felons does not have a universal standing in the US. Some states allow convicted criminals to vote, others allow doing so on parole, while the rest practice disenfranchising powers until the prisoner is released and all charges are cleared.21 A uniform federal law based on the Declaration of Human Rights Convention should enable all prisoners to exercise their voting rights.22 However, this kind of legislation would likely not find much support among law-abiding citizens. Therefore, these rights would likely be extended only to individuals with charges of non-violent crimes.
The ideas and arguments proposed in this paper have the potential to shape the US legislative field and grant major basic human rights to over 2 million inmates. It would signify a shift in the political landscape as well and force politicians to acknowledge prisoners as a vulnerable population whose rights need to be protected and observed. Despite losing some of their constitutional rights, felons remain human beings. Therefore, they should be granted the ability to exercise basic human rights that do not threaten to undermine public order. Major opposition to prisoner voting rights does not have any legislative strength behind itself, whereas a case for prisoner rights could be made based on various acts and provisions, such as the Prisoner Rehabilitation Act, Voting Rights Act, and the Convention of Human Rights. The existing system is dehumanizing the prisoner population in an effort to strip them of their basic rights, which results in high levels of fatalities, prison rapes, and other violations of their dignity as human beings. Treating prisoners as incarcerated citizens rather than slaves of the state would enable long-term rehabilitation as well as the fulfillment of civic duty in the broader context of society.
- Meskell, Matthew W. “An American Resolution: The History of Prisons in the United States from 1777 to 1877.” Stanford Law Review, no. 51, vol. 4.
- Easton, Susan. “Protecting Prisoners: The Impact of International Human Rights Law on the Treatment of Prisoners in the United Kingdom.” The Prison Journal, vol. 93, no. 4.
- United Nations Human Rights. “Universal Declaration of Human Rights.” UNHRO.
- Debeljak, Julie. “The Rights of Prisoners under the Victorian Charter: A Critical Analysis of the Jurisprudence on the Treatment of Prisoners and Conditions of Detention.” UNSW Law Journal, vol. 38, no. 4.
- Behan, Cormac. Citizen Convicts: Prisoners, Politics and the Vote.
- Damaska, Mirjan R. “Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study.” The Journal of Criminal Law and Criminology, vol. 59, no. 3.
- Grady, Sarah C. “Civil Death Is Different: An Examination of a Post-Graham Challenge to Felon Disenfranchisement Under the Eighth Amendment.” The Journal of Criminal Law and Criminology, vol. 102, no. 2.
- Kalb, Johanna. “The State of the City and the Future of Human Rights: A Review of Global Urban Justice.” Columbia Human Rights Law Review, vol. 148, no. 3.
- Bagaric, Mirko, et al.
- Okwerekwu, Jennifer A., et al. “Voting by People with Mental Illness.” The Journal of the American Academy of Psychiatry and Law, vol. 47, no. 1, 2018.
- Piacentini, Laura, and Elena Katz. “Carceral Framing of Human Rights in Russian Prisons.” Punishment & Society, vol. 19, no. 2.
- United Nations.
- Rountree, Meredith M. “Criminals Get All the Rights: The Sociolegal Construction of Different Ways to Die.” The Journal of Criminal Law and Criminology, vol. 105, no. 1.
- Swart, Mia. “The Prisoner Voting Dilemma: A Comparison Between the Position in the United Kingdom and South Africa.” Journal of South African Law, vol. 2015, no. 4
- Rubenstein, Leonard S., et al. “HIV, prisoners, and human rights.” The Lancet, vo. 388.
- Piacentini, Laura, and Elena Katz. “Carceral Framing of Human Rights in Russian Prisons.” Punishment & Society, vol. 19, no. 2.
Bagaric, Mirko, et al. “Technological Incarceration and the End of Prison Crisis.” The Journal of Criminal Law and Criminology, vol. 108, no. 1, 2018, pp. 73-135.
Behan, Cormac. Citizen Convicts: Prisoners, Politics and the Vote. Manchester University Press, 2016.
Damaska, Mirjan R. “Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study.” The Journal of Criminal Law and Criminology, vol. 59, no. 3, 1969, pp. 347-360.
Debeljak, Julie. “The Rights of Prisoners Under the Victorian Charter: A Critical Analysis of the Jurisprudence on the Treatment of Prisoners and Conditions of Detention.” UNSW Law Journal, vol. 38, no. 4, 2015, pp. 1332-1385.
Easton, Susan. “Protecting Prisoners: The Impact of International Human Rights Law on the Treatment of Prisoners in the United Kingdom.” The Prison Journal, vol. 93, no. 4, 2013, pp. 475-492.
Grady, Sarah C. “Civil Death Is Different: An Examination of a Post-Graham Challenge to Felon Disenfranchisement Under the Eighth Amendment.” The Journal of Criminal Law and Criminology, vol. 102, no. 2, 2013, pp. 441-470.
Heath, Amy. “Cruel and Unusual Punishment: Denying Ex-Felons the Right to Vote After Serving Their Sentences.” American University Journal of Gender, Social Policy & the Law, vol. 25, no. 3, 2017, pp. 327-338.
Kalb, Johanna. “The State of the City and the Future of Human Rights: A Review of Global Urban Justice.” Columbia Human Rights Law Review, vol. 148, no. 3, 2017, pp. 75-97.
Meskell, Matthew W. “An American Resolution: The History of Prisons in the United States from 1777 to 1877.” Stanford Law Review, no. 51, vol. 4, 1999, pp. 839-865.
Okwerekwu, Jennifer A., et al. “Voting by People with Mental Illness.” The Journal of the American Academy of Psychiatry and Law, vol. 47, no. 1, 2018, pp. 1-8.
Piacentini, Laura, and Elena Katz. “Carceral Framing of Human Rights in Russian Prisons.” Punishment & Society, vol. 19, no. 2, 2017, pp. 221-239.
Rountree, Meredith M. “Criminals Get All the Rights: The Sociolegal Construction of Different Ways to Die.” The Journal of Criminal Law and Criminology, vol. 105, no. 1, 2015, pp. 149-202.
Rubenstein, Leonard S., et al. “HIV, Prisoners, and Human Rights.” The Lancet, vol. 388, 2016, pp. 1202-1214.
Swart, Mia. “The Prisoner Voting Dilemma: A Comparison Between the Position in the United Kingdom and South Africa.” Journal of South African Law, vol. 2015, no. 4, 2015, pp. 706-718.
United Nations Human Rights. “Universal Declaration of Human Rights.” UNHRO, Web.