The Modern Cives Sine Suffraggio: Dimensions of Criminal Disenfranchisement in Europe

Published date01 May 2016
Date01 May 2016
AuthorMILENA TRIPKOVIC
DOIhttp://doi.org/10.1111/hojo.12163
The Howard Journal Vol55 No 1–2. May 2016 DOI: 10.1111/hojo.12163
ISSN 2059-1098, pp. 4–24
The Modern Cives Sine
Suffraggio: Dimensions
of Criminal Disenfranchisement
in Europe
MILENA TRIPKOVIC
Research Associate, Robert Schuman Centre for Advanced Studies, European
University Institute, Italy
Abstract: Despite much interest, we still know little about criminal disenfranchisement in
Europe. This article conducts an original study of the practice of disenfranchisement in
43 European democracies, accounting for the size and traits of the targeted population, the
components of restricted rights, and the timing and length of limitations. Based on these
findings, and taking the US as a reference, the article demonstrates that considerable
disenfranchisement policies persist in Europe. The article concludes by arguing that
disenfranchisement is but one of many restrictions that alter offenders’ citizenship status,
and proposes further venues of research in this area.
Keywords: criminal disenfranchisement; punishment; citizenship; prisoners’
rights
Criminal offenders have, throughout history,routinely been removed from
political life through various kinds of civil disqualifications. Sanctions such
as atimia in ancient Greece, infamia in imperial Rome, ‘outlawry’ in medieval
Europe, and ‘attainder’ in England, sought to reduce the full citizenship
status of criminal offenders and deny them access to privileges enjoyed
beforehand. Even so, the practice only targeted select groups of criminals:
for instance, infamia was ‘a widespread way of degrading citizens convicted
of certain crimes involving moral turpitude’ (Damaˇ
ska 1968a, p.351); ‘out-
lawry’ was prescribed only for very serious crimes – ‘the most heinous
of offenses’ (Lee Miller and Spillane 2012, p.406); while the English
‘attainder’ sanctioned only felonies and crimes of treason.
The incidence and character of these practices began to change a few
centuries ago. This transformation was influenced by the emerging no-
tions of rights, liberty and equality and with the developing perception
of citizens as ‘proprietors of themselves’ (Bellamy 2008, p.41). The polity,
4
C
2016 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol55 No 1–2. May 2016
ISSN 2059-1098, pp. 4–24
once consisting only of wealthy men, began to incorporate groups such as
women, the poor,and the illiterate. Moreover, the advent of modern crim-
inal law changed the dominant views on legitimate punishment. Curtailing
the State’s right to inflict unwarranted suffering paved the way to a more
humane criminal law, which subsequently ushered in a better protection
of offenders’ rights.
As a consequence, by the mid-20th Century, the incidence of criminal
disenfranchisement was decreasing around the world (Damaˇ
ska 1968a,
1968b). In line with this trend, highest courts of countries such as Australia,
Canada, South Africa, and Ireland (see Plaxton and Lardy 2010) affirmed
political rights of criminal offenders by demanding that policy makers
clarify the motives for excluding them from democratic polities.
Although criminal disenfranchisement eventually became contentious,
it, nevertheless, persists in some democracies. A pertinent example is
the ‘incomparably harsh’ disenfranchisement policy employed in the US
(Manza and Uggen 2008; Demleitner 2009; Ispahani 2009; Mauer 2011;
Hoskins 2014). Manza and Uggen (2008), for instance, note that criminal
disenfranchisement laws ‘are far more extensive and punitive [in the US]
. . . than in other countries’ (p.8). Mauer (2011) observes that US policy ‘is
far more extreme than in other nations’ (p.563). Recent data suggest that
5.85 million American felons – one in 40 adult US citizens – are disenfran-
chised; the black population is furthermore disproportionately targeted
since 2.2 million black citizens (one in 13) are without the vote (Sentencing
Project 2014b, p.1).
Europe, however, allegedly has its own ‘outlier’: the United Kingdom.
In 2005, the European Court of Human Rights (ECtHR) decided in Hirst
v. the United Kingdom (No.2) ([2005] 74025/01), that the country’s policy
of disenfranchising imprisoned offenders constitutes an ‘indiscriminate
ban’ and breaches Article 3 of Protocol 1 to the European Convention on
Human Rights (ECHR) which guarantees the right to free elections. Ten
years and six ECtHR decisions against the UK later (European Court of
Human Rights 2015), the government retains the same policy, justifying it
as a tool to ‘prevent crime . . . [and] enhance civic responsibility and respect
for the rule of law’ (UK Ministry of Justice 2012, pp.77, 84). Prisoners are
removed from the polls en masse while the government threatens to aban-
don the Council of Europe (CoE) should it not be given veto powers over
the Court’s rulings (Guardian 2014). The problem expectedly prompted a
degree of populism: Prime Minister David Cameron proclaimed that the
thought of giving prisoners the vote makes him ‘physically ill’ (Telegraph
2011) further promising that he will ‘clip European court’s wings over
prisoner voting’ (Telegraph 2013). At the same time, many commentators
criticised the government for restricting offender rights without proper
justification (Cheney 2008; Easton 2009).
But are depictions of the US and UK as ‘outliers’, accurate? A few
studies offer some answers (Blais, Massicotte and Yoshinaka 2001; Rotting-
haus 2003; Ispahani 2009; European Parliament 2013; UK Parliament
2013) but while informative, most of them predominantly refer only to the
existence of restrictions and the targeted criminal population. By so
5
C
2016 The Howard League and John Wiley & Sons Ltd

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT