Should murderers have the right to vote in prison?

The fact that I'm even thinking about this issue is a testament to the cognitive difference of living in the European Community for the past six months. Five years ago, the Grand Chamber of the European Court of Human Rights held in the case of HIRST v UK, Application No. 74025/01 (read the case online here) that the UK must revise its law banning all prisoners from voting in at least Parliamentary elections. Hirst, who was convicted of manslaughter and sentenced to a discretionary life sentence with a tariff of fifteen years (the minimum term prior to any possible parole, based on retributive and deterrent considerations), claimed among other things, that the voting ban violated his rights under Article 3 of Protocol No. 1 of the European Convention of Human Rights, which provides that:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

The Court declined to specify which prisoners had to be able to vote, noting that in this area, the "margin of appreciation is wide" within which courts should defer to legislative judgments about the purposes of punishment and the conduct of elections; but they clearly implied that under Article 3 of Protocol No. 1, some prisoner must be given the right to vote.

In November, a chamber (roughly the equivalent of appellate court panels in the US) of the European Court of Human Rights took notice of the fact that five years and at least one national election had gone by since the decision in HIRST and the UK had still not revised its law. IN, CASE OF GREENS and M.T. v. THE UNITED KINGDOM, Applications nos. 60041/08 and 60054/08 (read it here) the Court ordered the UK to come up with a new law within six months, and ordered them to pay 5000 Euros in expenses to prisoners with claims currently before the court (with the strong implication that a similar payment would be required for any future litigation, perhaps multiplied by thousands of prisoners who could be expected to bring cases should the government continue to ignore the court).

As noted in yesterday's post, there is something of a backbench rebellion going on among both Tory and Labour MPs who would like to snarl at the European Court and denounce it for interfering with sovereignty. The government, however, is clearly moving rapidly toward a new law (the old one dates back to 1870). This morning on BBC4 radio, Justice Secretary Ken Clarke indicated as much (listen to it here, note there is along interlude on the finances of the Supreme Court before they get to the voting issue), and while he would not say where the government wants to draw the line, he did trot out the clear cases of those who would be excluded, murderers and rapists.

While the European Court may well approve not only the exclusion of murderers and rapists, but lots of other persons sent to prison for significant sentences (after all they did talk about "the margin of appreciation" being "wide" for the political choice element), there are some good reasons why a government less committed to populist punitiveness might well recognize a duty to let even murderers vote and an outside chance the Court will make them do it.

First consider that the Court declined in HIRST itself to question the legitimacy of the governments goal of punishing offenders through denying them the vote (choosing instead to focus on proportionality). But they may have to reach this issue in the next case. Is denying a murderer the right to vote for Parliament a legitimate form of punishment? In HIRST, the Grand Chamber did say this in paragraph 69 of its judgment:

In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention.

This expresses a theme elaborated even more by the The European Prison Rules (Recommendation No. R (87) 3 of the Committee of Ministers of the Council of Europe) which states in paragraph 64:

Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.

While the recommendations of the Committee of Ministers are not binding on the Court, they have been influential. The essence of the argument is that, at least in Europe, punishment is limited to deprivation of liberty (and all that may be administratively necessary to accomplish that). Moreover, if there is to be a surplus beyond deprivation of liberty (the express argument of the UK government in HIRST), it surely cannot be one focused on status degradation, which offends the dignity principle running through much of the binding treaty law to which the UK is a signatory. For example, Article 10 International Covenant of Civil and Political Rights provides:

"1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." (emphasis added)

I am taken, for the moment, with an analogy suggested in the Grand Chamber's judgment in HIRST to a prisoner's family status. In paragraph 69, the Court articulated examples of rights that prisoners do not lose by being imprisoned, and the very first one, other than the right not to be abused that they mention is "they continue to enjoy the right to respect for family life."

Should a murderer have their parental rights and duties terminated by conviction and imprisonment (beyond those duties made impossible by loss of liberty and penal segregation)? Is not being a parent just as honorable a status in our societies as being a voter? In fact, both mix duty and honor.

Beyond punishment, the UK government could claim that banning murderers and rapists is essential to preserve the integrity of the electoral process. Even assuming that murderers and rapists would vote their class interest in weakening criminal laws and law enforcement, what plausible argument is there that any competitive candidate standing for MP would seek to attract such votes by advertising their desire to be as lenient as possible with murderers and rapists, or weakening law enforcement to assure that fewer of them would get caught.

Perhaps there is an argument that if all prisoners were allowed to vote in the Parliamentary constituency where they are currently serving time they could swing a close election. But the government has a easy solution to that problem. It can allow prisoners to vote in the constituency in which they lived prior to incarceration (which is more likely to be their relevant community in any event). Even under conditions of mass incarceration (and just between the two cases, the numbers of potentially effected prisoners in the UK had grown by tens of thousands), there is no plausible scenario under which prisoner votes would alter the policy positions taken by candidates on law and justice issues.

On the other side there are compelling arguments that voting is an example of pro-social, non-self interested behavior that should be an integral part of the rehabilitative process which the UK remains committed to (at least in theory).

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]

War on Crime Anyone? How to respond and not respond to January's heavy toll of outrageous murders and attempted murders

In case anyone has been hiking in desert for the month of January, we are the midst of a wave of frightening murders and attempted murders including the attempted assassination of Representative Gabrielle Gifford in Tucson, and in the same incident the murder of a federal judge and three other victims (including a 9 year old girl) and of quite a number of police officers in Detroit, Miami, Indiana, and Oregon. It seems inevitable that despite the gravity of the economic and environmental threats facing us (if anything, underplayed in the President's state of the union speech) fear of violent crime seems poised to jump again to a high position on the agenda of Americans.

As any reader of this blog will know, a reversion to the national obsession about crime strikes me as the worst possible thing we could do at this moment when we are still trying to wind down a disastrous and expensive war on crime (the prison population went down last year for the first time in 30+ years) that we cannot sustain even if we weren't in such dire straights. Here's a few not terribly well organized thoughts (but what are blogs for and I'm just off an all night flight from Chicago to Edinburgh via Dublin).

While it is impossible to pin down the motives behind all of these incidents at this point (and in some cases we may never really know) we do not seem to be in the midst of new crime wave. Violent crime, including murder, remains very very low by the standards of the last forty years. The trend since the early 1990s has been down nationally and in 2009, the US enjoyed a homicide rate as low as any it has experienced since yours truly was 1 year old in 1960.

It is unlikely there is an organized war on government and law enforcement going on ether, but time will tell (read Jim Gold's reporting on that possibility on msnbc's website here). However, this is clearly not a time that governments should be continuing to cut police forces which has been happening due to the severe state and local fiscal crisis. At least in some locales it is pretty clear that more and better policing has helped to drive down crime. Keep in mind that unlike prison systems which have expanded enormously since the 1970s, police forces have increased only a fraction. And unlike prison spending, an expanded police force can address a wide range of community needs other than investigating crimes. As community problem solvers they can add enormously both to our efforts to keep neighborhoods safer from all kinds of routine threats and they are also a major factor in the resiliency of a community facing a catastrophic blow (as we saw all too clearly in NYC on September 11, 2001, and all too clearly did not see in New Orleans after Hurricane Katrina in September, 2005.

In response to widespread horror and fear, about these killings, some will undoubtedly call for harsher punishment for those who kill or attempt to kill. This would be a huge mistake. The US already provides by far the harshest overall punishments for murder in the world. While other countries may execute more people for murder (including China and Iran), almost no other country imprisons so many killers for what is likely to be the rest of their natural lives.

I realize that many Americans assume that murderers deserve no less than to spend their natural lives incarcerated (if not be executed). This is understandable. Killing for us is the cardinal offense (what treason and blasphemy were to the past). We may have different intuitions about how much punishment is enough but we all ought to reflect on at least three penal considerations.

First of all, given the fact that punishment for killing has increased very very substantially in recent decades there is little reason to believe these recent murders and attempted murders would have been deterred if only harsher punishments were in place. Jared Loughner of Arizona carried out his mass murder in a state that has and uses the death penalty frequently and which keeps other murderers in prison increasingly for the rest of the natural lives. Even if he was not deranged by severe mental illness (which he appears to have been) there is zero reason to believe he would have been deterred by a harsher penal threat. The same goes for the police shootings in Florida.

Nor do we need to keep people in prison for decades and decades just to assure that they will not kill again. Even when we used to let murders out, recidivism was extremely rare. Once someone has spent ten or twenty years in prison, and almost certainly aged to the point where they are over 35, there is very very little reason to fear them, unless their individual prison behavior (like being an enforcer for their racist gang) indicates they have committed themselves to a permanent state of violence. Parole (where it has not been eliminated or reduced to near paralysis by earlier waves of crime fear) allows us to keep those individuals incapacitated while giving the others a huge incentive to do the work on themselves they will need to reassure officials.

Keep in mind that 99+ percent of all murders are done by someone who has never killed before and may never even have been imprisoned for any crime. If you really want to stop a killing before it happens, reducing access to guns for high risk individuals is the only realistic strategy, although more police on the streets and more mental health screening and treatment for those with alarming psychotic behavior could not hurt.

That leaves the question of how long we need to imprison someone for the purpose of communicating both the killer and to the broader community, our outrage that they have denied the essential dignity and immeasurable value of our fellow human being. I do not claim that there are any easy answers to that question whether in criminology or theology. I do not believe however that someone needs to die, or die in prison of old age in order to accomplish that and at no prior stage of our history in the common law world did we ever commit ourselves to such a perspective. Keep in mind that in harsh justice days of Blackstone (an 18th century textbook author on the common law of England much beloved by the authors of the US Constitution) while some killers who were considered especially heinous in their means or motives were hanged (and despite the fact that some people were hanged for stealing) most first time killers received a branded M on their thumbs along with less than a year in jail (through a now largely forgotten legal procedure called 'benefit of clergy' which was, in a way, a form of parole).

My own view is that 10 years of imprisonment under appropriately austere conditions (even by general prison standards) ought to be enough for most first time killers, followed by a comparable period of intensive parole supervision in the community. I would combine that with a requirement that they labor while in prison and on parole to pay off a substantial financial judgment to the family of the victim. For those who kill for heinous motives (like terrorism, monetary benefit, or to stop law enforcement) I would think doubling or tripling the prison portion of that punishment would be enough.

Setting some limits to our scale of punishment for this most provocative of crimes is, in my view, crucial to putting our currently excessive penal appetite (and unsustainable prison population) under control.

I had a chance to discuss some of these issues about murder with a wonderful audience of lawyers, prosecutors, and law students at Marquette University Law School's amazing brand new state of the art law building on Monday the 24th (here is a link to a summary).

The US Death Penalty: A European Perspective

Watching America's death penalty moves from a half year into my stay in Europe has been interesting. As Erik Eckholm and Katie Zezima report in Saturday's NYTimes, the ability of US states to get the drugs for their lethal injection cocktails has been hampered by the complete resistance of any and almost every European country. European Community treaties not only forbid any member states from using a death penalty, they commit them to working to eliminate the death penalty internationally. In the latest instance, the American company that produces sodium theopental does so in Italy, which will not allow it to export drugs for execution purposes. Even the country governed by Silvio Berlusconi, arguably George Bush's best friend in Europe next to Tony Blair (but unlike Tony, still in power for a few more minutes at least) won't give us our death drugs.

It is not that any one obstacle like this will halt the death penalty in the US, but drip by drip they are a reminder that strong opposition to America's use of capital punishment is a uniform and accepted value by virtually all players in the European political spectrum. You will not find conservative European leaders (outside perhaps the racist fringe parties and perhaps not all of them) who will back the US on capital punishment. Even leaders, who unlike Silvio Berlusconi, have political capital to spare, like David Cameron in the UK and Angela Merkel in Germany, are not going to waste it supporting America's execution habit. While many of their constituents continue to say they would like to have death penalty available, they do not hold their leaders even a tiny bit accountable for not giving them one.

Many Americans assume that Europeans couldn't possibly understand our death penalty needs. They may assume that European societies are low violence, relatively homogenous racially, and generally pacifists when it comes to punishing criminals. This picture is as badly out of date as the parallel assumption that the US has a more successful economy for average people. In fact violence remains low by US standards (remember most of Europe does not tolerate private gun ownership beyond hunting weapons and then with strict licensing), but fear of violent crime is a powerful feature of politics in all of the major European countries, much of it fueled by the loss of homogeneity and anxiety about immigration. Nor our Europeans any longer to be counted as "soft on crime." They do not use imprisonment nearly as indiscriminately (another reason their economies may be doing better) but they are increasingly punishing violent crime with long sentences and demanding better police efforts to solve and prevent violence. What they appreciate, even the ones that wouldn't mind having a death penalty, is that capital punishment would contribute next to nothing to protecting them from violent crime and would cost a lot of capital (Euros or Pounds) that nobody wants to pay more taxes for.

That idea is also just beginning to spread across the United States.

Progress and Peril in California's Prison Crisis

Maria Lagos of the SF Chron provided an excellent year start summary and analysis of where things stand with California's both chronic and acute prison crisis.

Progress? Only 8,200 prisoners are sleeping in "non-traditional" quarters, like day rooms and gyms, down from 20,000 in 2006. But almost all of this improvement has come from shipping prisoners out of state to public and private prisons elsewhere (Schwarzenegger's major experiment in government by emergency decree), a practice that is both fiscally irresponsible and violations of the right of access to visits by family and friends that that is a component of all non-degrading punishments.

Perhaps the most striking point is that the state never built a single additional cell of the 53,000 it authorized back in 2007 in AB900, which was supposed to solve the chronic overcrowding problem through new jail space as well as specialized prison centers for re-entry and for incarcerated mothers. Infrastructure, is no doubt hard to build in California for all kinds of environmental and fiscal reasons, for zero additional space in more than three years is powerful evidence that the factors which once made prison space easy to build in California, are over. But it also suggests that the state's capacity to stay on mission regarding prison reform, without the whip of the federal courts, is illusory (despite their bold protests during oral arguments late last year).

The peril? That California might choose limp on, squeezing under the court's limbo pole of 40,000 fewer inmates (about 30K to go), without fundamentally altering our unsustainable commitment to mass incarceration. On the positive side, Ryan Sherman, a spokesperson for the California Professional Peace Officers Association (the union of California's prison officers and parole agents), was quoted dismissing the potential for California to build her way out of the current crisis.

"The state cannot build its way out of the overcrowding prison problem," he said. "If they build more beds, we will fill up more beds and continue to be overcrowded. Until we figure out how to reform and reorganize the department so it's efficient and accountable, and take into consideration the limited budget and what's best for the state, I don't anticipate anything improving a great deal."

The union would like to focus on the organization of the Department of Corrections and Rehabilitation (which clearly needs a re-boot). Whether they would support a serious effort to downsize permanently the state's imprisonment caseload remains unclear.

One way for Governor Brown to signal that he will not accept a muddle through solution to unwinding mass incarceration to ask the legislature to reauthorize AB900 funds, not for new cells, but to make sure that complying with the court order in Plata does not mean more crime in California by re-hiring laid off police officers around the state and purchasing evidence based recidivism reducing programing both in prisons and in direct re-entry costs. This would be well spent on public security and economic stimulus to California's hard hit communities. It will also build support for more substantial reworking of California's public safety strategy which was last designed to protect us from Charles Manson and needs to protect us from a massive failure of infrastructure combined with natural disasters.

The Other White Meat: Governing through Crime, Race, and Gender

The intricacy with which the politics of crime and the politics of race are intertwined in the US is distinctive but not unique. The latest example comes from the country which is arguably the world's second most obsessive "culture of control" and from one the architects of New Labour's long experiment in governing through crime. Former Home Secretary (under Blair) and now veteran Labour stateman Jack Straw (I can never hear his name without thinking of the Grateful Dead song) speaking on BBC Newsnight about the conviction of two men of Pakistani ethnic background of raping and exploiting several young women who were of white (Anglo-Saxon?) background. (Read the Guardian story by David Batty)

"Pakistanis, let's be clear, are not the only people who commit sexual offences, and overwhelmingly the sex offenders' wings of prisons are full of white sex offenders.

"But there is a specific problem which involves Pakistani heritage men ... who target vulnerable young white girls.

"We need to get the Pakistani community to think much more clearly about why this is going on and to be more open about the problems that are leading to a number of Pakistani heritage men thinking it is OK to target white girls in this way."

Straw called on the British Pakistani community to be "more open" about the issue. "These young men are in a western society, in any event, they act like any other young men, they're fizzing and popping with testosterone, they want some outlet for that, but Pakistani heritage girls are off-limits and they are expected to marry a Pakistani girl from Pakistan, typically," he said.

"So they then seek other avenues and they see these young women, white girls who are vulnerable, some of them in care ... who they think are easy meat.

"And because they're vulnerable they ply them with gifts, they give them drugs, and then of course they're trapped."

Pakistani ethnicity has become the UK equivalent of African American in the US racial formation. Historic discrimination against this community which grew through immigration after World War II ("Paki-bashing" was a "sport" among "skin-head" racist youth in the '80s) has only become more intense since the recent upsurge of Jihadi terrorism in the UK. But the potential for invoking prejudice in this example is eclipsed by the striking absence of any analytic value. The fact is that men have long divided the world into women who are marriageable and women who are rape-able. There is no policy pay off to attending to the specific features of Pakistani culture that play into this near universal and invidious pattern of gender domination. The only purpose of invoking Islam or Pakistani "heritage girls" is to reinforce a linkage between fear of crime and fear of racialized others. Straw, on the verge of retirement and a seat in the House of Lords (or he was) has little to gain from such a statement. Instead,as an example of political slips of tongue, it reveals, why crime governance was such an important part New Labour's electoral strategy in a series of administrations that failed to improve the economic foundations of the UK's fragile middle class.

Metaphors we live by, part ?: "Imprisoned in their homes"

The home, and especially home ownership, is one of the most powerful anchor metaphors for citizenship in our post-modern democracy. In past generations, idealized citizens were imagined taking action in the public, whether the battle field or through mobilized public citizenship, and above all the commercial market place, for baby boomers and subsequent generations the homeowner has been valorized as the major way people contribute to the public good of their communities. I've argued in some recent publications that this kind of home ownership is also the anchor for citizen as crime victim, which drives "governing through crime" and the war on crime/drugs/terror. In particular, of all the ways that a polity might choose to be "tough on crime," the form of mass incarceration is shaped the influence of this homeowner as crime victim conception.

Against this the words of New York's new Governor Andrew Cuomo inaugural address as reported by Danny Hakim and Nicholas Confessore in the NTYtimes, drew my attention:

Mr. Cuomo described residents as being imprisoned in their homes, which are losing value even as their tax bills keep climbing.

“Nothing is going up in their lives,” Mr. Cuomo said. “Their income isn’t going up, their banking account isn’t going up, their savings aren’t going up. They can’t afford the never-ending tax increases in the state of New York, and this state has no future if it is going to be the tax capital of the nation.”

New York is far from as messed up as California by mass incarceration so the irony of describing homeowners as imprisoned in their homes is not as sharp as it would be if Jerry Brown said it. The fact that his sympathies are completely with the people as homeowners, rather than workers, families, etc. is worrisome. I'll have more to say in the near future about his political agenda , but on the metaphors we live by level, not inspiring to say the least. No doubt this guy wants to be President...

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On the Joana Yeates case I blogged about in my last post, Steven Morris has an insightful piece in the Guardian exploring why victims like Joanna are so compelling to the media and the public out of all the murder victims, young and old, that accumulate in the UK.