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People in prisons are people, too

People shouldn't lose all rights once they have been sentenced to a crime - including the right to vote, writes Max Harris

There’s been a lot of discussion of voting and voter turnout in the lead-up to the election. There’s been talk of whether the downward trend in voter turnout reflects a crisis of democracy. The Electoral Commission has run an energetic campaign trying to improve enrolment numbers. The community group Paiaka recently hosted a forum querying the value of voting, given that politics goes beyond Parliament and deep-seated problems with electoral politics.

In the midst of all these questions (Can I enrol? Should I vote? Who should I vote for?), let’s remember there’s one group of New Zealanders that won’t even have the option to vote on September 23: people in prison.

That’s 7143 people unable to exercise the right to vote to decide on the Government that will exert significant power over all of us in the next three years. More than 5100 of the total 10,035 people in prison (remand and sentenced prisoners) are Māori; 1104 of those people are Pasifika.

Without any apparent prompt or great need, in 2010 all 58 National Party MPs, and 5 MPs from the ACT Party, passed the Electoral (Disqualification of Sentenced Prisoners) Amendment Act. This banned all people in prison from voting, altering the previous position – that those with a sentence of more than three years in prison could not vote.

At the time, the Attorney-General – the National Party’s own MP, Chris Finlayson – acknowledged that the Supreme Court of Canada and the European Court of Human Rights concluded that a blanket voting ban for people in prison was an unjustifiable limit on the right to vote. Chris Finlayson also said in his opinion that the ban appeared to be inconsistent with the right to vote and could not be reasonably justified.

This law has stayed on the books for the last seven years. But the courts have not been silent about it, partly because of the efforts of inmate Arthur Taylor. In 2015, a judge in the High Court issued a declaration of inconsistency with the New Zealand Bill of Rights Act in a case about the law, brought by Taylor. This was the first time (with one technical exception) since the Bill of Rights was passed 25 years ago that a judge has declared a law to be an unjustified limit on human rights.

How people in prison might vote is irrelevant: it is no argument that a group shouldn’t be given the vote because it’s likely to vote in a radical or peculiar way.

The ban related to “the most fundamental aspect of a democracy”, said judge Paul Heath. Justice Heath added: “if a declaration were not made in this case, it is difficult to conceive of one in which it would”. He said the purpose of the declaration was to “draw to the attention of the New Zealand public that Parliament has enacted legislation inconsistent with a fundamental right”. (Despite this, unfortunately, the case received little public attention.)

The Government then decided to commit funds to appeal this case. Unusually, the Court of Appeal (the next highest court) sat with five judges, given the importance of the case. They found unanimously that the courts could declare a law to be inconsistent with the Bill of Rights, and upheld the declaration in this case. They also observed that the Attorney-General had not tried to justify the legislation, “an unusual stance in litigation of this kind”.

The government has now appealed further to the Supreme Court, primarily to argue that courts should not have the power to declare laws inconsistent with human rights. I’d suggest that it’s likely that the Supreme Court will uphold the decisions of the lower courts.

This should provide the Government – whoever that is after the election – with the opportunity to reconsider the law. Taking the vote away from people in prison (an institution that did not exist in this country prior to colonisation) disproportionately affects Māori. It discourages people in prison from taking an interest in current affairs and education – and this is unhelpful, given that these people will return to society. The law serves no useful purpose other than to send a limp message that a government is trying to be ‘tough on crime’.

But shouldn’t people in prison relinquish their rights to vote when they breach the social contract? They do face restrictions on their freedom of movement. The position should not be, however, that they lose all rights once they have been sentenced to a crime. That is why we don’t accept torture in prisons. There are limits. Rights should only be restricted where this is necessary and proportionate.

Punitive posturing grabs headlines. It doesn’t secure real justice, which is about more than just revenge.

There aren’t really any other good arguments in favour of the disenfranchisement of people in prison. It would not be practically unfeasible for electorate links to be established or makeshift voting stations to be available in prisons. How people in prison might vote is irrelevant: it is no argument that a group shouldn’t be given the vote because it’s likely to vote in a radical or peculiar way (even if that were true in this case, which it isn’t). And there’s no evidence that disenfranchisement is an effective tool to deter crime.

There’s an emerging consensus among young people speaking out on criminal justice issues – through groups such as JustSpeak (which I have been involved with) and People Against Prisons Aotearoa – that being ‘tough on crime’ might look tough, but is actually a weak and inept way of getting at the root causes of crime. Punitive posturing grabs headlines. It doesn’t secure real justice, which is about more than just revenge. Tossing out this tired ‘tough on crime’ mentality would also entail tossing out the 2010 voting ban.

The youth-led group, RockEnrol, of which I am a member, is drawing attention to the more than 10,000 people in prison by aiming to enrol 10,000 new young voters. But RockEnrol acknowledges that this is only a first step towards changing the law.

Elections provide an opportunity to consider competing party promises, and rival leaders. But they also give us a chance to think more deeply about our democracy: a term that originally meant a system governed by ‘the power’ of ‘the people’ (the demos).

And to state the obvious: people in prison are people, too. They’re part of ‘the people’ that make up our democracy. Our law must change to reflect that.

So next time someone talks about voter turnout or barriers to voting, let’s add this perspective. Let’s mention the voting ban we’ve left in place since 2010.

No proper democracy should cordon off who ‘the people’ are at the prison gate.

Max Harris is the author of The New Zealand Project and a member of RockEnrol, a youth-led group seeking to unleash the political power of young people (rockenrol.org.nz/getinvolved).