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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Suspension of the Political Rights of Prisoners

Pablo Marshall

Criminal penalties — Prisons and prisoners — Civil and political rights — Limitations on rights

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Definition

1.  The suspension of political rights refers to the temporary loss of rights to political participation and mainly affects those who have committed a criminal offence (prisons and prisoners). It must be clearly differentiated from other forms of political participation eligibility. That is, this suspension only affects those who are holders of political rights and is different, in this regard, from the electoral exclusion of children, people with mental disabilities, and foreign residents.

2.  The institution of suspending the political rights of citizens (citizenship) convicted of the commission of a criminal offence has various names and adopts different forms depending on the jurisdiction in question, but they are all essentially the same legal practice. It is known as ‘felony disenfranchisement’ (eg Art. 8 Constitution of the State of Alabama: 1901 (US)), ‘prisoner disenfranchisement’ (eg Section 3 Representation of the People Act 1983 (hereinafter ‘RPA’) (UK)), Nebenfolgen or ‘ancillary measure’ (Section 45 Criminal Code (StGB) (Ger)), pena accessoria de inhabilitación or ‘accessory punishment of incapacitation’ (Art. 39 Código Penal (Chile)), and the suspension of political rights (Art. 38 Political Constitution of the United Mexican States: 5 February 1917 (Mex)). Some countries have even included this institution in their constitutions and have gone as far as to use it as grounds for the loss of citizenship or pérdida de la ciudadanía (Art. 17 Political Constitution of the Republic of Chile: 8 August 1980 (Chile)).

3.  This practice may involve the deprivation of the broader category of political rights, that is, all those rights that enable a person to participate, passively or actively, in formal political decision-making processes (civil and political rights). However, the rights that are affected are not always clearly defined. For instance, while most governments suspend the right to participate in elections, some jurisdictions allow participation in general or federal elections but not in local elections, or vice versa. This can be attributed to a country being divided into federal and state levels, each of which can regulate the suspension of political rights autonomously (eg Australia, United States (‘US’), Mexico). The question of whether the suspension should be extended to the right to participate in referendums has also been also discussed (eg Priscilla Nyokabi Kanyua v Attorney General and Another [2010] (Kenya), McLean and Cole v The United Kingdom (ECtHR)).

4.  Although it is the right to vote that is typically suspended, and consequently the right which receives the most attention (indeed, it is the main focus of this entry), it is not the only political right that may be suspended as a result of criminal involvement or conviction. Other political rights that may be suspended include the rights to serve as a member of a court’s jury, be a member of a political party, hold a position in the press or trade unions, and form a political party (Damaska 356–357). The right to stand as a candidate for election or run for public office can also be suspended (political candidates and campaigns). Two important differences exist between the right to candidacy and to vote. First, it is commonly argued that the exercise of public authority demands standards of virtue and capacity higher than those required to exercise the right to vote. A second, and perhaps more important, argument for this suspension is that the duties of public officers are especially incompatible with imprisonment, that is, elected officials must perform their duties outside the prison. This adds a practical dimension to the matter. These differences make a joint analysis complex. Thus, further analysis of the right to candidacy will be left to other research, as will other political rights. The exclusion of an extensive analysis on the right to political candidacy is not grave, however, as the majority of the countries that suspend the right to vote also suspend this right. Thus, this entry will be limited to the analysis of the suspension of the right to vote.

B.  Evolution

5.  The practice of suspending political rights can be traced back to ancient practices of atimia, infamia or ‘civil death’. Contemporary expressions of the suspension of political rights have developed from two sources. The first is the classical tradition; here the deprivation of political rights and public status can be found in Roman law infamia and in Greek cities which held practices aimed at bringing about one’s exclusion from public life, such as the Athenian atimia. A second source is Germanic law, which embraced the practice of depriving political rights under ‘civil death’. This institution was perpetuated during the medieval age and was also known, depending on the country and with certain variations, as ‘outlawry’, ‘attainder’ or ‘infamy’ (Damaska 350–352). While prison punishments eventually became more commonplace, those who committed a felony were still sentenced to ‘civil death’. This punishment was abolished in Europe in the late nineteen century, but civic disqualifications and the loss of civil rights remained. During the 20th century, Europe limited the effect of such disqualifications by placing time limits based on the length of imprisonment. In recent years, the debate on the suspension of political rights based on a criminal conviction has achieved renewed momentum due to a series of cases under judicial review.

C.  List of Analysed Jurisdictions

6.  The jurisdictions selected for this analysis are those that have received recent attention by scholars as their legislation suspending political rights has been challenged either judicially or politically. The countries selected are: Australia, Austria, Botswana, Canada, Chile, Costa Rica, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Mexico, New Zealand, Russia, South Africa, the United Kingdom (‘UK’), the US, and Turkey.

D.  Comparative Description

7.  Despite evident differences in terms of culture and geographical location, the suspension of political rights can be found on every continent and in every region of the world. Countries as diverse as the US (Florida, Alabama), UK, Chile, Russia, India, and Turkey do not allow certain types of convicted criminals to vote. Whilst the above-mentioned countries totally or partially suspend the political rights of convicted criminals, other countries throughout the world allow criminals to vote.

8.  An examination of legal regulations shows that, from a sample of 108 countries that explicitly identified voting disenfranchisement in their legislations, 63 countries (58%) prohibit convicted criminals from voting, while 45 countries (42%) explicitly grant them voting rights. Suffrage (suffrage) may be partially recognized, allowing certain prisoners to vote (eg Art. 29 Codice Penale, Presidential Decree No 223/1967 (It)) or allowing prisoners to vote in certain elections (eg local or national), or suffrage may be guaranteed for all convicted criminals, such as in Canada, Ireland, and South Africa.

9.  The following analysis examines the various elements of the models explaining the suspension of prisoners’ political rights in the selected jurisdictions.

1.  Legal Basis

10.  The suspension of political rights is granted by various legal sources, four of which are observed in comparative law. The most common source is a legislative statutory act, which can be the output of a relatively recent deliberative process (eg Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 (Austl)) or long-standing historical and traditional rules (eg Section 3 RPA (UK)). Suspension can also be established by administrative rules or be provided for in a constitutional norm. The latter is provided either by express authorisation to a statutory arrangement (eg Art. 38 Mexican Constitution) or by a direct constitutional entrenchment (eg Art. 91 Constitution of the Republic of Costa Rica: 7 November 1949 (Costa Rica)). However, suspensions may also be applied without any statutory, administrative or constitutional legal basis, that is, they can be applied via the absence of a mechanism allowing some citizens to vote. This is the case when, according to the law, offenders formally maintain the right to vote, while in practice they are impeded to do so (eg Chile; see August and Another v Electoral Commission and Others [1999] (S Afr)xe "Table of cases:August v Electoral Commission (1999)").

2.  Affected Subjects

11.  The scope of the suspension of political rights depends on two main variables: the offender’s imprisonment status and offence, which are explained by four disenfranchisement models. The prison-based model links the suspension of political rights to the imprisonment of an offender, independent of the nature or status of his imprisonment, with both inmates serving a sentence (eg Section 3 RPA (UK)) and those being held on remand (eg de facto, Chile) being disenfranchised. In this model, offenders must be imprisoned for their voting rights to be suspended. Nonetheless, the fact of imprisonment does not automatically suspend voting rights; other factors are taken into consideration. The blanket ban model, however, affects all imprisoned offenders alike without further considerations. British regulation on the suspension of political rights is usually referred to as a blanket ban, despite the exclusion of some categories of prisoners (eg Section 3 RPA (UK)). In the crime-based model, the suspension of political rights is independent of an offender’s current imprisonment status. Rather, the suspension is imposed on all subjects who have been charged with or convicted of a crime, thus disenfranchising inmates, ex-prisoners -including those who have already served their prison sentence (eg para. 7.041 Florida Election Code (US)) or those on parole (eg Section 53 Criminal Code (Turk)), and those who have never been imprisoned—including those still being prosecuted or on probation (eg § 13-912 Arizona Revised Statutes (US)). Under the targeted model, two groups of subjects are affected: either (i) those serving sentences for certain offences (eg ‘felonies’, ‘infamous crimes’) or (ii) those serving a certain length of imprisonment (eg 3 years or more). Regarding the first group of targeted offenders, it is the nature of the crime that determines the suspension of political rights. Offences against the public, such as abuse of office, election offences or terrorism (eg Section 45 StGB (Ger)), and a number of other crimes, including bribery, larceny, duelling or bigamy (eg Section 241 Constitution of the State of Mississippi: 1 November 1890 (US)), result in disenfranchisement. In regards to the second targeted group, their suspension is applied based on the actual length of their prison sentence (eg para. 93 Commonwealth Electoral Act 1918 (Austl)) or on the maximum sentence length that can be handed down (eg Art. 17 Constitution of Chile). For this second group, the application of the suspension depends on the seriousness of the punishment, not on the seriousness of the crime. Variables from all four models coexist in every legal system that suspends political rights. Thus, in practice, jurisdictions operate under mixed or hybrid models.

3.  Period of Suspension

12.  Per the aforementioned models, the length of the suspension may or may not be connected to the length of imprisonment. Prison-based models tend to re-enfranchise prisoners immediately after they have served their prison sentence, allowing re-enrolment in the electoral register or eliminating the ban ipso iure. Here the duration of the suspension of political rights corresponds strictly with the duration of imprisonment. In the crime-based model, however, the suspension may continue after inmates are released from prison and may affect offenders who have never been imprisoned. In the first case, the suspension of political rights may expire a certain amount of time after the prison sentence has been served (eg Delaware Voter Restoration Act (US)) or may affect ex-prisoners permanently (eg Presidential Decree No 223/1967 (It)) via a lifetime disenfranchisement.

4.  Recovery of Rights

13.  Some jurisdictions impose a permanent loss of political rights. Those temporarily affected by the suspension of political rights may either be re-enfranchised ipso iure, which can be immediately after an offender has served their sentence or a variable period after this, or may require an additional process to reinstate the suspended rights. An additional process can consist of a simple re-enrolment in the electoral register (eg UK, Chile), a more complex administrative procedure such as clemency boards (eg Florida Rules of Executive Clemency (US)), a judicial decision (eg Presidential Decree No 223/1967 (It)), or a process under a political authority, such as a Governor’s Pardon (eg Kentucky Executive Order 2015-052 (US)) or a Senate agreement (eg Art. 17 Constitution of Chile) which will likely exert discretional power for the re-enfranchisement. A mixture of these procedures is also possible, such as an administrative recommendation before a political decision. The process to recover the suspended rights may involve various elements. Those especially relevant are the gravity of the crime and the number of times the person has been criminally sentenced. The recovery may be difficult or impossible when the offender has been imprisoned more than once, particularly if any of the offences was part of a group of serious, violent or political crimes. Even if the suspension is meant to be temporary, it may become permanent if the re-enfranchisement procedure is never executed or failed. Therefore, the difficulties involved in accessing this procedure and it being successful could conceal the intention of a perpetual or definitive loss of political rights.

5.  Judicial Intervention

14.  The concrete application of the suspension of political rights may only follow a general statutory provision (‘by operation of law’) or, alternatively, a judicial or administrative decision that declares the suspension. In this latter case, even though the suspension may be based on a statutory rule which allows its application to a particular case, it is the judicial or administrative decision that is its direct antecedent. This decision could be based on the particular circumstances of the offender or the crime to be judged by a court (a discretional power), or on the legal requirement of determining this effect on the judicial decision (a mandatory intervention). Some judicial decisions of the European Court of Human Rights (ECtHR) have deemed that judicial intervention is advantageous due to its contribution to the legitimacy of the suspension (eg para. 82 Hirst v The United Kingdom (No 2) (ECtHR); paras 31–34 Frodl v Austria (ECtHR); paras 97–102 Scoppola v Italy (No 3) (ECtHR)).

E.  Justification and Recent Challenges

15.  During the last couple of decades, the suspension of prisoners’ political rights has become an issue in some jurisdictions and, as such, laws have started to be reviewed under democratic and human rights standards. In particular, activists challenging legislation on the basis of a violation of fundamental rights have started to gain success. These activists have determined a formula to successfully challenge legislation that suspends political rights, a formula that could eventually be exported to other jurisdictions to pursue a worldwide progressive agenda. The judgments made over the past decades regarding the suspension of political rights can be divided in three categories.

1.  Permissive Judgments

16.  The first group of judgments freely allows for the suspension of an offender’s political rights as these judgements do not stipulate any condition that could impede a suspension. This does not mean that the jurisdictions in question actually suspend the political rights of all offenders, but that the courts have not made any rulings that would impede such a policy, either at present or in the future. The best-known judgment in this group is the US Supreme Court case Richardson v Ramirez (1974) (US), which continues to be the leading case on the matter in US law. Generally, US case law has constructed the protection of the right to vote in negative terms by prohibiting discrimination based on race, sex and age.

17.  However, in Richardson v Ramirez (1974) (US), the US Supreme Court (Supreme Court of the United States) blocked the review of the suspension of political rights for prisoners. The California Supreme Court had ruled that the suspension of voting rights for ex-prisoners whose terms of incarceration and parole had expired was unconstitutional. This decision was reached by applying the strict scrutiny standard of review, based on the idea of the right to vote as a fundamental interest of a potential voter. The US Supreme Court reversed the decision of the California Supreme Court, declaring that US states could pass legislation depriving former prisoners of their voting rights without violating the equal protection clause of Section 1 of the Fourteenth Amendment. In arguing this, the US Supreme Court exempted criminal conviction from the group of electoral qualifications that, according to the case law of the Court, are subject to strict scrutiny, therefore requiring states to show a compelling interest to restrict voting rights. This exemption was based on the historical and judicial interpretation that Section 2 of the Fourteenth Amendment explicitly sanctions the exclusion of felons from the voting franchise and restricts challenges to disenfranchisement legislation that are based on arguments of equality and discrimination Thus, the US Supreme Court refuted the lower court’s interpretation of Section 2. The aforementioned constitutional sanction is not present in other restrictions to the right to vote which had been invalidated by the US Supreme Court in previous cases, restrictions such as poll tax or residential requirements. Accordingly, the US Supreme Court argued that if this section expressly exempts criminals, the suspension of voting rights of criminals could not be a restriction prohibited by Section 1. The question that follows from such reasoning is the following: according to this Court, what, if any, is the standard of rationality to which state action must be subjected? The Court did not answer this question in Richardson v Ramirez (1974) (US), and it has not done so since that case.

18.  The US is not the only jurisdiction that has decided to permit the suspension of political rights. Recent cases addressing the suspension of political rights issued by courts from Botswana (Thomas Sibanda (Bots)), India (Chief Election Commissioner v Jan Chaukidar (2013) (India)), Ireland (Breathnach), Mexico (Pedraza Longi (Mex)), and New Zealand (Re Bennett (1993) (NZ)) have also resorted to constitutional provisions to block judicial challenges to the suspension of political rights. All the cases within this group were resolved without any strict constitutional examination, on the basis that the suspension of political rights is expressly authorized by the constitution (US, Chile, Mexico, and Botswana), the Court had no powers of review (New Zealand), or there was no constitutional conflict to resolve (Ireland).

2.  Prohibitive Judgments

19.  In a second group of jurisdictions, courts have explicitly prohibited the suspension of political rights. The judicial decision of the Supreme Court of Canada (Cour suprême du Canada) in the case Sauvé No 2 [2002] (Can) is probably the most influential judgment as it has been expressly and authoritatively cited by all other courts that have considered the issue. The Court found the legal provision that suspended the right to vote for all prisoners serving sentences of more than two years to be unconstitutional and authorized the suffrage of all Canadian inmates within the prison system. The Canadian government stated that the suspension of political rights pursues two broad objectives: first, to enhance civic responsibility and respect for the rule of law and, second, to provide additional punishment. The Court, however, expressed concern regarding these objectives. First, it doubted ‘how much these goals actually motivated Parliament’ (at para. 21). Second, the Court conceded the legitimacy of the purposes, notwithstanding that such ‘[v]ague and symbolic objectives ... almost guarantee a positive answer to this question’ (at para. 22) of its legitimacy and that the purposes had not been ‘precisely defined so as to provide a clear framework for evaluating its importance’ (at para. 23). The Court emphasised that it did not outrightly dismiss the government objectives merely for prudential considerations, even though the Court did consider that none of the purposes outlined by the government were ‘pressing and substantial’. In fact, the Court rejected the government’s argument at a later stage of the review, at the level of rational connection. The Court analysed the proportionality of the legislation, concluding that the objectives lacked a rational connection with the legal provision of the Election Act (2000) (Can). The government claimed that suspending prisoners’ right to vote advanced the first purpose, that is, increasing respect for the law (by both inmates and community in general). They argued that suspending this right sends an educative message about the importance of respect for the law and that it avoids demeaning the political system. They also argued that the suspension advances the second purpose by imposing a legitimate punishment ‘regardless of the specific nature of the offence or the circumstances of the individual offender’ (at para. 29). In response to the government’s claims, the Court went so far in philosophical argument as to label the empirical issues put forth by the government as ‘strange’. Regarding the first argument, the Court stated that the premises on which respect for the law in a democratic society such as Canada are built cannot be used to argue that suspending suffrage reinforces that same respect for the law. In fact, the opposite is the case. According to the Court, this is ‘bad pedagogy’, which is ‘more likely to harm than to help respect for the law’ (at para. 30) and ‘anti-democratic and internally self-contradictory’ (at para. 32), and also runs against Canada’s commitment to ‘the inherent worth and dignity of every individual’ (at para. 35). Similar categorical statements were used to dismiss the complementary arguments about enhancing civic responsibility. In regards to the argument that allowing penitentiary inmates to vote ‘demeans’ the political system, the rational connection between that purpose and the provision, according to the Court, is based upon the inadmissible ‘ancient and obsolete’ premise that prisoners are in a sense unworthy of the respect or dignity deserved by every citizen able to participate in the elections. As such, both justifications failed the rational connection test. Finally, the Court considered the diverse penological functions that the suspension of political rights can perform, concluding that the additional punishment effect that the government claimed was not convincing. All punishment functions were already either covered by imprisonment or could not rationally be expected to be performed by the suspension of political rights. Thus, again, the measure failed the test of rational connection. Even though the Court found the proportionality test failed at the rational connection stage, it nonetheless evaluated the provision under the other elements of the test a fortiori, also concluding that it would fail to pass them. Regarding the minimal impairment test (necessity), the Court considered that the provision was not only over-inclusive but that there was no clear standard by which to assess the measure. Even if it is taken for granted that the purpose of the measure is to affect only serious offenders, there is a lack of justification regarding necessity. The Court first questioned what ‘serious’ offender might be taken to mean and how a line that separates these offenders from ‘minor’ offenders can be rationally drawn, and, second, what makes the category of serious offenders different from minor offenders in such a way as to restrict their right to vote. Finally, assessing proportionality in the strict sense, the Court pointed out democratic legitimacy issues, the rehabilitative function of prisons, and a disproportionate impact on the Canadian aboriginal population. Sauvé No 2 [2002] (Can) is an important judgment as it set a relatively high argumentative standard. Its many arguments relative to the protection of democracy and fundamental rights frame its progressive outcome in a reasoned and principled way.

20.  In 1999 and 2004, the South African Constitutional Court also handed down judgments against legislation that suspended the political rights of prisoners. The Court first considered the issue in August and Another v Electoral Commission and Others [1999] (S Afr), in which the absence of a prisoner voting system was imputed as an unconstitutional inaction. In August and Another v Electoral Commission and Others [1999] (S Afr), the Court ruled on the inaction of the Electoral Commission, the administrative organisation responsible for implementing the elections, in providing a voting mechanism for prisoners. The defence of the Commission was mainly based on the argument that prisoners are allowed to vote but they cannot physically do so as their imprisonment depends on their own misconduct and not on some action of the Commission. Explaining why it had not provided a registration and voting system for prisoners, the Commission argued that, first, to do so would involve logistical, financial and administrative difficulties, and, second, that this kind of special voting mechanism should be reserved or preferably implemented for other categories of persons physically deprived of their vote (such as expatriates and poor inhabitants of remote areas). The Court answered these arguments peremptorily by stating these general principles: the vote of each and every citizen is a badge of dignity and of personhood (at para. 17), and prisoners retain all those rights not expressly deprived by the legislature (at para. 18). Thus, the Court affirmed that the Commission had breached the Constitution by failing to protect the right to vote, a right whose very nature imposes positive obligations upon the legislative and the executive branches.

21.  Just four years after this judgment, the government passed the Electoral Law Amendment Act (2003) (S Afr) that banned all prisoners, except those imprisoned for not paying a fine, from voting. The Court analysed this amendment in Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and Others [2004] (S Afr). In regards to the Act’s provision that explicitly disenfranchises prisoners, the Court used the same arguments they presented in Sauvé No 2 [2002] (Can), meanwhile the government’s argument for the purpose of the legislation was based purely on instrumental reasons that essentially repeated the argument presented in August and Another v Electoral Commission and Others [1999] (S Afr). That is, the government argued on the grounds of logistical and financial inconvenience and the need to prioritize additional resources for other citizens unable to exercise the right to vote, but also added that allowing prisoners to vote threatens the integrity of the process. The government also mentioned that conceding prisoners this right would suggest that the government is soft on crime. The Court refused to accept the logistical argument due to the absence of evidence and argued that existing alternative methods of voting could be used to provide prisoners the opportunity to exercise their rights. The additional argument about being seen as soft on crime was addressed with irony by the Court: ‘It could hardly be suggested that the government is entitled to disenfranchise prisoners in order to enhance its image; nor ... in order to correct a public misconception as to its true attitude to crime and criminals’ (at para. 56). However, the Court viewed the government’s aim in a better light when it recognized that at the level of policy it is important for the government to denounce crime and communicate to the public that citizens’ rights are related to their duties and obligations. However, the Court pointed out that the government did not develop this argument at all or provide any evidence before the Court that would support it. Ultimately, the Court asserted that the government failed to provide sufficient information before the Court as to the exact purpose the suspension of rights was intended to serve. It did so after recognising that Section 36 of the Constitution of the Republic of South Africa: 4 February 1997 (S Afr) sets a high standard for the limitation of rights that requires, on the one hand, consideration of the importance of the infringed right and, on the other hand, the importance and effect of the infringing provision. As such, the Court’s decision in this case reiterated that of Sauvé No 2 [2002] (Can). Similar judicial decisions are found in Argentina (Mignone (2000) (Arg)), Israel (HCJ 2757/96 Alrai v Minister of Interior [1996] (Isr)) and Ghana (Ahumah-Ocansey v The Electoral Commission; Centre for Human Rights and Civil Liberties (CHURCIL) v Attorney General and Electoral Commission [2010] (Ghana)). In some of these cases it is uncertain whether new legislation with a different scope would be compatible with the constitutional protection of political rights.

3.  Deference Judgments

22.  Finally, some judgments have explicitly allowed the government some margin, albeit limited, to suspend the political rights of offenders under certain conditions. This is the case of Hirst v The United Kingdom (No 2) (ECtHR), in which the ECtHR analysed whether the suspension of political rights in the UK was in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). It found the UK’s blanket ban on prisoner voting incompatible with the convention. The UK government sought to justify Section 3 of the Representative of the Public Act (1983) (UK) by appealing to the purposes of preventing crime, punishing offenders, and enhancing civic responsibility and respect for the rule of law. As a consequence of the application of the margin of appreciation doctrine, the Court did not undertake an examination of the legitimacy of the governmental aims. This was considered a question of particular flexibility in the context of the broader variations of regulations suspending voting rights within the European democratic models. Despite the reservations expressed, the Court did not find the aims per se incompatible with the right to vote. Having satisfied the requirement of a legitimate purpose, the Court’s ruling on the UK legislation was based on a proportionality analysis. Nevertheless, the Court did not proceed to examine the measure in terms of the traditional formulation of the proportionality test, this is, in terms of the rational connection and minimal impairment of the suspension of prisoners’ voting rights, as well as this suspension’s balance or proportionality in the strict sense. Rather, it did so with reference to an ad-hoc and specific test. In the core of the test, the Court considered that the ‘general, automatic and indiscriminate’ suspension of a prisoner’s right to vote is incompatible with the Convention, appealing to the necessity of a certain graduation or proportionality between the measure and the circumstances of a prisoner’s incarceration. The Court affirmed that the suspension of political rights was general because it strips a large group of people of the vote, automatic because it applies irrespective of the length of sentence or the gravity of the offence, and arbitrary because its results depend on the timing of elections. The ECtHR concluded that Section 3 violates the right to free elections because it does not take into account the nature of the offence and the duration of the imprisonment. In other words, the Court deemed that the suspension of political rights in the UK depended on nothing more than the mere fact of imprisonment. In its decision, the Court allowed for a proportionate application of the suspension as long as the jurisdiction’s legislation considers the nature of the offence and duration of imprisonment.

23.  Following this judgment, other cases challenged legislation in Austria (Frodl v Austria (ECtHR)), Italy (Scoppola v Italy (No 3) (ECtHR)), Russia (Anchugov and Gladkov v Russia (ECtHR)), and Turkey (Söyler v Turkey (ECtHR)). In each of the aforementioned cases the ECtHR confirmed the ruling made in Hirst v The United Kingdom (No 2) (ECtHR). In the Australian Roach case (Roach v Commonwealth [2007] (Austl)), the country’s High Court confirmed the constitutionality of a legal provision that suspended the right to vote to prisoners serving sentences of three years or longer, but ruled that the amendment that introduced a general suspension affecting all inmates was unconstitutional. In Hong Kong, the High Court handed down Chan Kin Sum, whose judgement affirmed that the general suspension of prisoner voting rights was disproportionate and discriminatory based on arguments previously discussed in Sauvé No 2 [2002] (Can), Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and Others [2004] (S Afr), Hirst v The United Kingdom (No 2) (ECtHR), and Roach v Commonwealth [2007] (Austl).

F.  Comparative Assessment

24.  The existence of different attitudes in comparative law towards the suspension of political rights may be explained in several ways. Political scientists Rottinghaus and Baldwin conducted a comparative examination of practices and several probable determinants which included: colonial cultural heritage, democracy and levels of political freedom, imprisonment rates, and voting accessibility for other special population groups. Rottinghaus and Baldwin came to four main conclusions as to the relationship between these determinant factors and disenfranchisement practices. First, they found that the region that by far most disenfranchises prisoners is Latin America and that the second highest number of countrywide suspensions occurs in Africa, which Rottinghaus and Baldwin attributed to these regions’ repressive colonial legacies and the prevalence of civil strife, manifested through strong and oppressive military dictatorships. In Latin America, 13 out of 14 countries suspend prisoners’ voting rights, and in Africa 16 out of 23 countries disenfranchise prisoners. Eastern Europe follows with 10 out of 15 countries suspending their right to vote, while the most permissive legislation was found in Western Europe (with only 4 out of 19 countries banning prisoners from voting). Despite showing geographical tendencies, the impact of a country’s colonial heritage on current disenfranchisement legislation remains inconclusive (Rottinghaus and Baldwin 694). Second, they found that surprisingly there are no strong ties between democratic countries and the suspension of political rights. Rather, civil rights and political freedom were greater determining factors, with prisoners in countries with a strong practice of the aforementioned factors being granted the right to vote in higher numbers. Third, there was no correlation between the rates of imprisonment and the suspension of political rights, which suggests that there is no relation between stricter punishments and the suspension of political rights. Fourth, no connection was established between the existence of flexible voting policies designed to make voting accessible for prisoners versus for other sectors of the population—such as expatriates, people with mental disabilities and people in hospitals (Rottinghaus and Baldwin 696–697). Countries that provide voting rights and accessibility to the ballot box to other groups do not necessarily provide it to prisoners.

25.  Their conclusions provide support for what can be called a ‘pluralistic point of view’ in the analysis of the suspension of political rights. They suggest that ‘there is no single variable that explains why or how countries allow or disallow prisoners to vote [, and therefore] political cultural explanations matter as much as structural allowances’. Accordingly, they call for ‘case studies that examine specific political context, social norms, sentencing guidelines and cultural treatment of offenders’ (Rottinghaus and Baldwin 697). Though other studies have been carried out with the purpose of explaining the variations among state legislations within the US, the diversity observed in the international landscape is also present in the national legislations of this country, in which each of the member states has competence to determinate its own rules on the suspension of political rights. In the case of the US, most states disenfranchise prisoners to varying degrees; very few do not disenfranchise prisoners at all (Demleitner 765).

26.  Demleitner, on the other hand, compared the legal systems of the United States and Western European countries (especially Germany), and found that the former is considerably more likely to suspend prisoners’ political rights than the latter. Though all these countries show similar levels of development and democratic indexes, the aforementioned asymmetry is explained by different attitudes towards offenders. She focuses on four main differences between the US and Western Europe. First, in the US the discourse on punishment is dominated by racial considerations. This issue could not be considered influential in the European context, mainly due to the fact that racial minorities only (relatively) recently have had access to European citizenship and that this phenomena did not produce changes in laws regarding the suspension of political rights. Second, whilst Americans consider voting to be a privilege, Europeans are more likely to consider it a right. Third, the US Supreme Court, despite constant judicial challenges, has not permitted significant constitutional controversy on this issue, whereas courts in Europe have considered the issue substantially. Finally, European countries, under German influence, have limited the suspension of political rights in accordance with scientific discourse of criminal law, while in the United States the suspension of political rights is located outside the criminal sphere, thereby allowing jurisdictions significant discretion as to its implementation.

27.  As presented in the last section, courts have struck down legislation on the suspension of political rights for violating fundamental rights in several jurisdictions over the past 20 years. These judgments have not categorically proscribed the suspension of political rights as an undemocratic and impermissible practice but have accepted, with some reservations, that representative institutions can pursue legitimate aims through this kind of legislation. In the opinion of most of the courts, the problems with this practice have therefore not necessarily been associated with its motives, aims or reasons, rather mostly with the lack of a proportional relation between the aim being pursued and the measure employed.

28.  The similarities among the judicial challenges brought against the suspension of political rights show a transnational judicial trend. First, the reasons or aims used by governments display a high degree of coincidence. Government submissions commonly argued the idea that suspension is a form of punishment and that it encourages civic responsibility and respect for the rule of law. The regard the courts held for these arguments varied considerably. Though governments also made arguments regarding practical, economic and administrative concerns, these arguments were less common and less pressing. It is crucial to note that the courts accepted all governmental purposes as legitimate, but to varying degrees. Second, with regards to the standards that must be met in order to suspend political rights, the majority of the judgments coincide in that the suspension is acceptable only under certain and qualified circumstances. For one, it cannot affect offenders who have finished serving their prison sentences (with the exception of the US and some other jurisdictions). Second, and more importantly, it cannot operate on a blanket basis that excludes all prisoners without any reference to the nature or seriousness of the offence, in other words, it cannot rely solely on the bare fact of imprisonment. Thus, suspensions must target certain offences, that is, serious offences or offences that relate with democratic procedures. In summary, and according to the majority of the judgments, the suspension of political rights must be restricted so as to only affect serious offenders and only then for the duration of their prison sentences.

29.  This recent transnational trend in judicial decisions is a pale reflection of the idea that the practice of suspending political rights runs against the modern trend of extending the right to vote to all, an idea that is even accepted by its critics. In a re-assessment initiated 40 years ago in the US, scholars have nearly reached a consensus on the harmful effects of this practice. Various arguments supporting this consensus have been offered by scholars from diverse disciplines such as constitutional and criminal law, criminology, sociology, and political science. These arguments include the following: (1) the suspension of political rights negatively affects an offender’s reintegration process; (2) the suspension degrades offenders, transforming them into second-class citizens; (3) its application produces a racially discriminatory impact; and (4) offenders are exposed to unfair treatment by impeding them from expressing their interests in the rule-making process.

30.  This overwhelming academic consensus, coupled with the judicial trend, contrasts with the high rates of support that the political class and the general population in some of the jurisdictions in which the issue has been raised have for the suspension of political rights. This is not a coincidence; the reluctance of politicians to support the inclusion of offenders in the franchise may be based on the public’s opposition to such an inclusion. Politicians commonly argue that to correctly perform their representative function they must listen to their constituencies, which have expressed a clear opposition to giving offenders access to the right to vote. Public opinion, in turn, may be shaped by a populist political discourse of being tough on crime, leading to a vicious circle of penal populism (Manza and Uggen Chapter 9; Easton 452).

31.  The reasons offered by governments in defence of this practice have varied according to the different contexts in which they are expressed. In the courtroom, when governments have been compelled to explain the rationale of disenfranchisement legislation, their arguments have been short and consistent: the suspension of political rights serves as an additional punishment for offenders, promoting civic responsibility and respect for the rule of law (eg Hirst v The United Kingdom (No 2) (ECtHR) paras 74–75). However, when addressing the issue in parliamentary debates or in the media, political discourse has been less restrained, with arguments occasionally becoming an exercise in wedge politics as evidenced by the statement of one British Prime Minister who claimed: ‘It makes me physically ill even to contemplate having to give the vote to anyone who is in prison’ (Hansard, HC Deb 517 col 921, 3 November 2010). However, politicians have also offered arguments that are more intuitive, such as ‘when you break the law, you cannot make the law’ (David Davis, MP. See Hansard, HC Deb 523 col 493, 10 February 2011).

32.  In an attempt to provide more solid theoretical foundations to the defence of the suspension of political rights, some voices within academics have risen up against the academic consensus and provided important insights into this debate. Those scholars who defend some form of suspension of political rights have sustained one or more of the following arguments: (1) it is an expression of democratic will and must be respected as such; (2) it expresses the importance of the people’s self-determination within a democracy; (3) it sets forth an element of civic virtue as a requirement for participation in elections; and (4) it constitutes an expressive form of punishment in the context of the commission of serious crimes or crimes against democratic values.

33.  The popular, political and scholarly support for the suspension of political rights, and therefore opposition to the judicial trend, has led to the emergence of a conflict that can be described as paradoxical. On the one hand, the fact that courts have struck down disenfranchisement legislation passed by representative institutions which had followed democratic procedure may generate criticism from the perspective of democracy, especially for the contra-majoritarian implications of striking the legislation down. On the other hand, the action of the courts can also be seen as protecting democracy against abusive majoritarian decisions. In the first case, democracy is seen as a decision-making procedure. In contrast, in the second case democracy is taken as normative ideal in which everybody should have an equal right to participate in the processes of decision-making. This paradoxical conflict between these two interpretations on the relation between the suspension of political rights and democracy makes this debate even more complex.

34.  In summary, the arguments in the discussion on the suspension of voting rights have opened a legal, political and theoretical debate on the intended and unintended messages that are communicated via excluding offenders from certain rights, the constitutional structure of the right to vote, and the scope, importance and role of voting rights, among others. In fact, at least in legal circles, the main issue in current discussions on the right to vote is the suspension of political rights in cases of criminal conviction. This issue poses questions that strike at the deep contradictions underlying modern representative democracy. It exposes some of the fragilities on which legal and political institutions, practices and discourses are sustained, and, therefore, invites us to revisit the importance and validity of ideas such as universal suffrage or the claim that political rights are in fact fundamental rights.

Select Bibliography

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