Annual Lecture 2011: Should UK Prisoners Vote? An American Perspective
The European Court of Human Right's 2005 decision in UK v. Hirst calling on the UK to reconsider its blanket ban on prisoner voting, reaffirmed in November 2010, raises important questions about the role of courts in checking mass incarceration and the populist punitiveness that drives it. As an American observer living in the UK I was first amused by the issue which seems decidedly Utopian in the US context where many states ban people convicted of prisonable offenses from voting for the rest of their lives, and where so many palpable human rights abuses exist in our prisons. I want to offer a revised perspective. The biggest difference between Europe and the US may in fact be the role that dignity as a public law value can play in checking mass incarceration in the former.
The UK is something of an intermediate case, drawn to US style populist punitiveness but legally committed to human rights, including dignity for prisoners. From that perspective the voting issue is far from Utopian. Indeed, any generalized ban on prisoner voting can only be sustained by a commitment to degrade prisoners as citizens and ultimately human beings. The Hirst case reflects the soft power of law to force principled reasoning about punishment. The result may make PM David Cameron "physically ill," but it could also help Britain's broader political class come to terms with the proper purposes of punishment and the limits of populism.
Jonathan Simon is the Adrian A. Kragen Professor of Law at University of California, Berkeley & Leverhulme Visiting Fellow Edinburgh University. His book 'Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear' (Oxford University Press, 2007), explored the role of crime and criminal justice in shaping the larger framework of law and governance in the United States. It was the winner of the 2008 Book Prize of the Sociology of Law section of the ASA and the 2010 Hindelang Prize of the American Society of Criminology. More broadly his work concerns the role of criminal justice and punishment in modern societies, insurance and other contemporary practices of governing risk, the cultural lives of law, and the intellectual history of law and the social sciences. Together with Malcolm Feeley he wrote a number of pioneering articles on the rise of 'actuarial justice'. Before joining the Boalt Hall faculty and Center for Criminal Justice at Berkeley in 2003, Jonathan Simon was a professor at the University of Miami School of Law.
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