Monday, February 7, 2011

Prisoner Voting and Penal Populism in the UK

Last fall Justice Minister Ken Clarke issued a green paper [read the consultation paper here] on penal policy signaling a course correction from the mass incarceration policies promoted by New Labour during its 13 years in power (and indeed for the last two years of the Tory government which proceeded). Better use of community corrections for less serious crimes, reconsideration of mandatory minimums on life sentences, and restorative justice across the range of cases were all to be considered, with the goal of avoiding the continued growth of incarceration in England Wales. So far these signs have not been reversed. But the potential limits of the coalitions' experiment with reversing the larger constellation of penal populism, from which mass incarceration is a predictable result, are now on display as the government confronts a renewed call by the European Court of Human Rights to address a five year old mandate, utterly ignored by the previous government, to give most British prisoners the ability to vote in elections for parliamentary bodies (regional, national, or European), or face paying compensation damages to all otherwise eligible prisoners beginning with the upcoming regional elections (for the Scots parliament and the Welsh Assembly) [read the Guardian's coverage of the Novemeber decision].

Prime Minister David Cameron indicated that he would probably comply in order to avoid the hit on the exchequer of having to pay millions in compensation, but not without telling Parliament that it made him "physically ill" to think of prisoners voting [see it on YouTube here]. The PM chose an apt metaphor (I assume it was meant that way) to describe his response, since the attachment to voters through penal populism is required to be visceral. The fulle exchange should be viewed to see how committed the British polity seems to be to penal populism.

The exchange begins with a Tory backbencher asking whether hte Prime Minister agrees with him that the Human Rights Court's decision is "wrong" "because incarceration should mean a loss of rights, and that must surely include the right to vote." The PM said he "completely agreed" before sharing his bodily fluids issue. This exchange is followed by a labor backbencher who asks how the PM would look at "prisoners voting to to elect the crime commissioner or police chief." When Cameron attempts to pass it off, the Speaker to laughter (suggesting agreement) requests the PM to answer, after which he reiterates what a great point it is, before restating that it would be even more wrong to pay prisoners compensation money.

The implication, apparently shared by both the Conservative party and Labour (leaving Liberal Democrats possibly to resist on this), is that prisoners should lose all their rights, "certainly including a right to vote." The opposing view is now widely shared among European Human Rights experts. As Thomas Hammarburg, Europe's Commission for Human Rights, argued a few days ago in a Guardian Op-ed:

Convicts are human beings, with human rights. I hope the British authorities will respect the court ruling on voting rights for prisoners. They could do that knowing that most other member states of the Council of Europe already allow prisoners to vote – and this has caused no real problems and is not even an issue in these countries.

Hammarburg points out that the very idea of universal suffrage was a hard fought battle for equality won against the strong presumption that status should determine whether an adult citizen could vote or note. The UK is nearly alone in Europe in maintaining that prisoner status is an exception to that revolutionary democratic principle.

Whether the current British government will ultimately fulfill the mandate is unclear. The government faces a brewing backbench rebellion on the issue, and one prominent conservative think tank has now called for the UK to withdraw from the jurisdiction of the European Court of Human Rights, despite being one of its founding members some 60 years ago. [read Patrick Wintour's analysis in the Guardian here]

As if to solidify his presence as a "tough on crime" leader, David Cameron took the opportunity of a report on the previous government's role in forwarding Libya's appeals on behalf of Abdelbaset al-Megrahi (convicted as the Lockerbie bomber, but released more than a year and a half ago by Scottish authorities on compassionate grounds that he was dying of cancer), to let everyone know that he believed al-Megrahi should have "died in prison." [On the report see Severin Carrell's reporting in the Guardian here]


Barry Vaughan said...

Interesting post as always Jonathan but I'm curious why you don't look at things from the other end of the telescope. We should hardly be suprised at theatrical displays of revulsion from politicians when it comes to law and order. But surely the more interesting development is how the freedom to be penally populist has been circumscribed by a supra-national body which is encouraging the Europeanization of human rights. Does this indicate that governing through crime occurs in a contested space of multi-level governance? What always struck me about your book is how thoroughly rooted in the American experience it was with a strong emphasis on the forces of local democracy; something which those who wish to export is as some sort of global development tend to overlook. So if politcians try to govern through crime in Europe, do we need to take more account of these supra-national institutions like the Council of Europe and the EU and what does this mean for accounts of penal populism?

Jonathan Simon said...

I agree with you Barry. England and Wales (and perhaps Ireland as well) are a key test of this, however, as governments in both countries have clearly embraced governing through crime. How much push back the European Court of Human Rights will ultimately provide is not clear to me. It strikes me that they are unlikely to "strike down" most elements of mass incarceration, but they do provide a powerful counter narrative that simply does not exist in the US.

Although the book I am writing now claims our lower federal courts are creating something like it through the back door of the 8th Amendment's "cruel and unusual punishment" ban. However it is a door our Supreme Court could well slam shut.