My submission on the prisoner voting bill

I oppose this bill as it proposes entitlement of voting in an entirely unprincipled and artificial way.

I think there are two principled positions you can take on the issue of whether prisoners vote. The first is that the right to vote is one of those fundamental rights that no one should ever lose, no matter what. That it doesn’t matter what their crime was, or their punishment – it is punitive and un-necessary to deprive anyone of the right to vote. I think that view is an extremely principled and defensible view. It’s not my personal view, but I have respect for that view-point.

Indefensible is the proposal that prisoners sentenced to more than three years do not get to vote, but less than three years do get to vote. This proposed threshold is arbitrary and capricious.

The argument by the Minister that “someone who is going to be released back into the community during a Parliamentary term should have the right to have a say on who leads them during their time of freedom” means that logically then any prisoner with less than three years left to serve should be allowed to vote. But that is not what this bill does. Trying to tie it to the term of Parliament is a red herring. If we had a five year term, would we restrict it to prisoners serving less than five years?

How is it fair that someone sentenced to 35 months is okay to vote but 37 months and you’re not. Why three years? The only plausible reason I’ve heard is that it was the length of the electoral term, but does that means if we went to a four year term, then it should be sentences of four years or more?

With parole, you would have some prisoners get a three year sentence but get out in one to two years so they would never in fact have a practical impact of the disenfranchisement. Whether or not you miss out on voting in an election would depend on where in the electoral cycle your offending or at least sentencing occurs.

And should someone who spends say 14 out of 15 years in jail continue to vote because each sentence was under three years, while someone who gets a one off three year sentence does lose the vote?

So I find little virtue in the proposed law as it is arbitrary and inconsistent.

I have looked at other possible thresholds. If one accepts there are some convicted criminals who should not vote, then what is the best threshold. The range of options that occurred to me, from most punitive to least punitive.

  • Permanent disqualification for anyone convicted of any crime. I suspect my Otago University under-age drinking offences would mean I’d be one of those losing the right to vote. This is by the way the law in nine US states.
  • Those sentenced to prison can’t vote while in prison and for x years after release This is the law in 21 US states – that you get the vote back not on release but after parole and or probation.
  • Those sentenced to any form of custody (home detention, periodic detention) can’t vote while sentence is underway
  • Those sentenced to prison can can’t vote while in prison. This is the law in 18 US states and 14 OECD countries.
  • Those sentenced to x years or more lose right to vote while in prison – proposed for New Zealand. The law in around 14 OECD countries
  • X varies greatly by country. In Malta it is one year. In Bulgaria it is 10 years. How do you make a principled case for what x should be?
  • Those sentenced three or more times to prison lose the right to vote while in prison (three strikes and no vote)
  • Those serving a life sentence can’t vote
  • No restrictions at all – in place in around 14 OECD type countries

Putting aside the no restrictions at all category, I regard the other options as all being quite arbitrary, or even more harsh than what NZ has.

I believe the best case is that prison is the correct threshold. The case is that prison is basically the last resort for criminal offenders. Judges will rightfully go to great lengths to keep more minor offenders out of prison, as once they are in prison their chances of stopping offending is low. For someone to actually be sent to prison as opposed to a fine, community service, periodic detention or home detention they have to be either a massively repeat offender or their crimes have to be very serious such as rapes, grievous wounding or worse.

Heather MacDonald in a column in the New York Times commented that “prison remains a lifetime achievement award for persistence in criminal offending”

So when a Judge finally decides that the offending means you have to go to prison, is for me the best threshold compared to arbitrary ones such as sentences of x years.

I asked the Department of Corrections the average number of convictions for prisoners serving a sentence of three years. They replied that the average number of convictions is 30. So those serving a sentence of three years or less are not generally first, second or third time offenders. They are recidivist criminals (and around 40% are gang affiliates)

So, what about the other option – no restrictions on voting at all? Well that is my second option. I actually would prefer we had that law, than the law proposed in this bill, as it is principled. But why don’t I support no restrictions on voting at all as my first preference. I’ll cite three reasons – two good and one poor.

The poor reason is simply instinct. I hate the thought that someone like Clayton Weatherston or the Christchurch terrorist could get to vote from prison, after they have stolen lives (and votes) from their victims.

The better reason is that society and democracy is based on a social compact. We have elections and laws due to the benefits they bring us as a society. And I think people who very seriously break those laws should as part of their punishment get to lose the right to determine those laws. To use a bad analogy you get kicked out of a club if you can’t follows the rules of the club. Should murderers, paedophiles and rapists get to vote on which policies they want implemented on the rest of society?

The third and final reason why I have no voting restrictions at all as my second, not my first option, is that I think it is a relatively minor right compared to the other rights you lose in prison. If you are sentenced to prison you lose your right of freedom, your right of movement, your right of employment, your right of consensual sex with your chosen partner, your right of free speech, your right of protest, your right of food choice, your right of entertainment, your right of Internet access, your right of clothing choice, and your right to sunshine. So is adding your voting right to that massive list of other rights you lose in prison out of kilter? Note also almost none of these rights are lost with any lesser sentence such as home detention.

Penultimately I just want to touch on a practical issue. While the principle is an important one, and it is good to be considering it, I tried to find out how many prisoners in NZ actually were voting before the 2010 law change. Was this a right that any prisoners were actually using? Sadly it seems officials were unable to find out. That would have been a useful piece of data.

In a recent referendum in Ireland only 1.45% of prisoners voted, despite considerable efforts to making voting from prison easy.

We have around 1,985 prisoners in NZ serving a sentence of under three years. 1.45% of 1,985 eligible prisoners would be around 29 likely voters out of over two and a half million. The point in calculating this is not to say the issue isn’t important because it may only be 29 votes – just that the impact on any electoral outcomes from the law change is probably extremely low.

In conclusion, I think the threshold of prison is a better public policy choice than a threshold of a sentence of three years or more.

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