I was surprised to learn recently from an Irish law professor that Ireland gave its prisoners the right to vote in 2006. Felon disenfranchisement is such a pervasive fact of life in the United States that many Americans might assume, as I did, that this is the accepted practice everywhere. This turns out not to be the case. Ireland is hardly alone, even among the common-law countries, in giving prisoners the right to vote, although the case of Ireland may be unusual in that its legislature acted in the absence of a court directive. Canada and South Africa, by contrast, required court rulings before their prisoners were enfranchised. The Irish story is nicely recounted in an article by Cormac Behan and Ian O’Donnell: “Prisoners, Politics and the Polls: Enfranchisement and the Burden of Responsibility,” 48 Brit. J. Criminology 319 (2008).
Before proceeding with the Irish story, a little on the American situation:
According to the Sentencing Project, nearly six million Americans are prevented from voting because of a felony conviction. A helpful state-by-state breakdown of the rules is here. Only two states, Maine and Vermont, permit prisoners to vote. Most of the remaining states, including Wisconsin, not only prohibit prisoners from voting, but also other felons who are being supervised in the community. A dozen states even continue disenfranchisement after the felon has completed all of the conditions of his sentence. Since 1997, there has been a definite national trend toward expanding voting rights for felons, but reforms have been mostly been rather modest so far.
In Ireland, the pre-2006 law permitted offenders on community supervision to vote, but made no provision for voting by prisoners. Inmates could register in their home districts, but, of course, they had no way to get to the polls. The 2006 law changed things by permitting prisoners to cast “postal votes,” which, I take it, is the Irish equivalent of absentee voting.
Surprisingly, the law was pushed through by a right and centre-right coalition government that had been associated with “tough on crime” politics. Apparently, the reform drew no public outcry or legislative opposition, and virtually no media coverage. Given the conservative leaning of the proponents, perhaps this was something of a “Nixon going to China” moment.
Based on the legislative debates, the bill’s justification apparently centered on the notion of voting not just as a right, but as a civic responsibility. The leading proponent put it this way:
The fact that a person is incarcerated for a crime he or she has committed does not mean he or she has ceased to be a citizen or to enjoy the rights of the franchise. We should facilitate that person’s exercise of the franchise and encourage responsibility as part of the education process . . . . There are rights and responsibilities of citizenship.
Another supporter said,
[We] are not about being soft on criminals . . . . People not only have rights but they have responsibilities. It is time to stop recycling prisoners as if they were some sort of commodity and creating an environment in which prisoners have rights but no responsibilities, which takes from their dignity.
Whatever the justification, the bill was enacted in time for prisoners to vote in the 2007 elections. Behan and O’Donnell report that prisoners did not actually register to vote at high rates; only about 14% of eligible prisoners registered. However, among those who did register, the voting rate was a healthy 71% — a bit higher than the general Irish voting rate.
Of all of the contemporary topics of debate relating to the American penal system, I find it hardest to judge the importance of felon disenfranchisement. There seems little immediate practical benefit to reform in this area (or cost either, for that matter). Contrary to the hopes of some reform advocates, it seems unlikely to me that enfranchisement would significantly affect the political dynamics of crime and punishment; poor, stigmatized, and unlikely even to register and vote at especially high rates, felons would hardly be regarded as a prized constituency by elected officials.
On the other hand, is there any right that is symbolically richer? Behan and O’Donnell quote from the opinion of the South African Constitutional Court recognizing the right of prisoners in that country to vote:
The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.