The Scottish Tories don’t mean to be the way they are. Sometimes they just can’t help it. They are being that way again over plans to let some prisoners vote in the forthcoming Scottish parliament elections. I am not convinced those elections should be going ahead at all in the middle of a pandemic but, if they are to, there are good reasons for prisoners to be enfranchised.
The Tories intend to force a vote at Holyrood on Wednesday against allowing those serving custodial sentences of less than 12 months to participate in the May 6 election. MSPs voted last February to extend the franchise in order to comply with a series of judgments from the European Court of Human Rights, beginning with 2005’s Hirst v United Kingdom (No 2). In Hirst, the court ruled that a blanket ban on prisoner voting was disproportionate in that ‘it strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate’.
Since then, the UK Government has pledged on several occasions to bring forward changes to make its ban Convention-compliant but, besides proposing an exemption for prisoners on temporary licence, has done little in the way of substance. The Welsh parliament got a bit further along the process, holding a consultation in 2017, but reform has yet to materialise. Instead, it has fallen to the Scottish parliament to be a mature, responsible legislature. There’s a first time for everything.
The Scottish Tories don’t see it that way. For them, enfranchising prisoners is ‘another example of the SNP’s soft-touch attitude towards criminals’, which, given Scotland has the largest prison population per head in western Europe, is further proof that the SNP can't do anything right. The Tories’ Scottish leader Douglas Ross, who hasn’t yet learned to modulate his political outrage, describes around seven per cent of inmates casting a ballot as ‘absolutely appalling’.
‘While the rest of us may have to change our usual voting traditions, some of the very worst criminals will be able to vote without any hassle from a jail cell,’ he adds, as though he thinks they should be pelted with eggs or forced to complete a round of the Krypton Factor on their way to the ballot box.
I’m all for challenging the stultifying consensus that throttles Scottish politics like an octopus with carpal tunnel syndrome. Scotland is home to a rare quantity: a radical establishment. A clanjamphry of academics, scribblers, artists and third-sector pension-seekers solemnly believe that in parroting the prejudices of the ruling party they are engaged in an act of radicalism. Scotland has contributed many original ideas to the world but none so novel as the revolutionary echo.
The trick, though, is to reject unthinking consensus when it is wrong, when the echo repeats ideas that sound appealing but are fundamentally flawed. Prisoner voting is the exact opposite: it sounds like a ludicrously bad idea and yet it is sensible, measured and may promote rehabilitation and remorse, if not obviously so.
The principal grounds for denying prisoners the vote is the concept of civic death, that by offending against civil peace offenders do not deserve to share in its privileges. The Forfeiture Act (1870) proscribed felons from ‘exercising any right of suffrage or other parliamentary or municipal franchise’ as well as taking up any military, civil or public office. This reflected the understanding of the time that crime was purely a product of personal wickedness and called for harsh retribution to be meted out.
Our current understanding is that criminal behaviour is at least in part socially conditioned and that rehabilitation, reparation and reducing recidivism have important roles to play in our system of sanctions. Too often proponents of contemporary penology come across like advocates for criminals, rather than a better criminal justice system, and their aloofness towards popular opinion makes it harder for reform to get a fair hearing. The argument is not that crime shouldn’t be punished but that it should be punished smartly, effectively, and compassionately.
Central to any such system is forcing convicts to confront the harm they have done to society, take responsibility for their actions and learn to become law-abiding citizens. Civic death absolves the criminal of these responsibilities. Society is something other, the source of their captivity, a target for resentment. One of the aims of punishment should be getting prisoners to see themselves as part of society, a shared future they can enjoy once they are prepared to meet the responsibilities required. Civic death frames voting as an entitlement when it is just as much a duty.
The literature on the pro-social effects of prisoner voting is still modest and a causal link remains elusive but civic rebirth can be part of a broader programme of reforming criminals to make them conform to community standards. The ‘hard rehabilitation’ model used in Oregon, where prisoners are compelled to spend set hours per week working or learning, preparing them for reintegration when their sentence ends, is one approach that seems to make sense.
While it is essential to recognise the social circumstances that contribute to criminality, it is just as vital to discourage the mindset in prisoners that they are victims of society. Instead, they must be taught to accept that they have a role to play in shaping the social environment for their own betterment and that of others. They have a choice to make. It is a choice that requires support in custodial and post-custodial settings, and political will on the part of government to invest in reintegration services, but the decision begins with the individual offender.
For prisoners to take personal responsibility, they must learn that justice is guided by process, not prejudice, and that coercion and deceit are morally indefensible when reason and persuasion give us all the tools we need.
The current situation in Scottish prisons could almost have been designed to illustrate this point. The number of custodial cases of Covid-19 has almost doubled in the space of a week, in large part thanks to an outbreak at HMP Kilmarnock, which has seen infections spike by 52 per cent in seven days. One in every ten Scottish prisoners is now self-isolating. Even if your reaction to such figures is to advise throwing the key away from a two-metre distance, bear in mind that one-quarter of inmates have not been convicted of a crime. As of last month, 25 per cent of those banged up in Scotland were on remand.
At the outset of the pandemic, Scotland’s justice minister Humza Yousaf talked up the possibility of early release for up to 450 inmates nearing the end of their sentence to help manage the virus on the inside. In the end, only 348 were liberated in advance. Inmates may not be sympathetic figures but the state, having decided that these people must be incarcerated, has a responsibility for their health and welfare. Prisoners are a vulnerable population but their safety and wellbeing has not been prioritised anywhere in the UK. Would ministers be quite so relaxed about exposing these people to a lethal virus if they had a vote? Give prisoners the franchise and you give them a sense of control over their lives that most never felt before entering custody.
The reparative and democratic cases for prisoner voting might get short shrift from the public but it is crucial that reformers keep making them if similar changes are to be secured in England and Wales and extended in Scotland. The preferred approach of rubbing opponents’ noses in the Human Rights Act (HRA) and the European Convention on Human Rights (ECHR) may be satisfying but it is self-defeating.
Every time advocates of unpopular reform fall back on the HRA or the ECHR — presenting their preferred outcomes as legal faits accompli, rather than winning the policy debates — they increase the perception of the Act and the Convention as impositions by internal and external elites and hasten the day when either or both tear up the political agenda in much the same way that Brexit did. By pronouncing individual applications to lie outside the realm of democracy, they make it more likely that the entire human rights architecture is brusquely pulled into the democratic process.
Don’t tell — show. Combine civic rebirth with more aggressive interventions during and after custody and demonstrate to the public that keeping inmates part of society while on the inside can make them productive members of it on the outside. Instead of dictating a criminal justice system to the public, involve them in building one that works and that they can have confidence in.