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barredballots
September 28, 2014 | by  | in Features Homepage |
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Barred Ballots

During the election coverage of 2008, TV3 gave local comedian Raybon Kan reign over the ‘light’ segments. His brief tenure included the observation that “a recent poll showed 93 per cent of people want harsher sentences on prisoners” before deadpanning “this means that even prisoners themselves want harsher sentences”. It turned out to be the most astute observation of the entire debacle. The New Zealand justice system loves it some sweet incarceration. We have the eighth-highest imprisonment rate in the OECD, with 8618 people currently servin’ the time for doin’ the crime (about 1500 prisoners away from breaching maximum capacity).

Last Saturday, none of these 8000-odd citizens of New Zealand were allowed to vote.

Three years ago, in circumstances that can charitably described as ‘unusual’, the National-led government passed a member’s bill, the Electoral (Disqualification of Sentenced Prisoners) Amendment Act, that repealed section 80(1)(d) of the Electoral Act 1993. In layman’s terms? The contract allowing prisoners their right to vote was dissolved, and a cornerstone of New Zealand democracy was lost. Orange may be the new black, but the little orange man, it seems, is most definitely not.

Prisoners can, under this law, no longer vote. To put the dubious process involved in passing the bill into perspective: despite the fact that of the 61 submissions to the select committee, only two were in favour. One of these submissions was from the MP who proposed the bill in the first place. Equally as concerning: the Act flagrantly contravenes the Bill of Rights, which states in no uncertain terms that “every New Zealand citizen who is over the age of 18 years has the right to vote and stand in genuine periodic elections of members of the House of Representatives” under conditions of universal, and not selective, suffrage. Meanwhile, the Human Rights Commission has this to say: “While prisoners no longer enjoy freedom of movement, they retain the majority of their human rights and can complain if they believe these rights have been breached”. Before the Bill was officially passed, they prepared a public statement decrying it as ‘a retrograde step that cannot be justified either legally or morally’ Ruh-roh.

A bit of sleuthing revealed that actually, this act, though atrocious, was only an extension on a punitive measure that has been part of New Zealand’s law for a long time. Prisoners serving a sentence of three years or longer have always been disenfranchised; the 2010 amendment just went a bit further and placed a blanket ban on prisoners’ voting rights.
Though legal action has been taken by multiple prisoners to try to rectify this measure, none have borne fruit or gained traction. In the most recent case taken to court, just days before the election, Justice Ellis expressed sympathy to prisoners, and voiced criticism of the Bill, but ultimately conceded there was nothing she could do within the parameters of the law. Despite the obvious injustice of the situation, mainstream media outlets whose purview covers issues of this sort – think The Listener, Metro – won’t touch the issue with a ten-foot pole, for reasons that I’ll touch on later.

Usually, I write my articles under a guise, at least, of impartiality, and I make a genuine attempt to cover ‘both sides’, but this case is so cut-and-dry, and made me so furious and heart-rended while I researched it, that I feel like opting for a polemic voice is fine: New Zealand is denying its prisoners fundamental human rights essential to democracy. This is beyond fucked. Something is wrong.

***

No one would ever mistake me for a Law student, but I know enough to confidently say that incarceration serves a four-pronged purpose. The reason we send people to prison, and segregate them from society at large, are as follows:

1) Retribution – The punishment part. In order to deny them certain privileges and remove them from the community, as well as appeasing their victim(s) and their family members.
2) Incapacitation – They are imprisoned to prevent them from being able to commit the same crime again.
3) Deterrence – Prison sentences also serve (no pun intended) as a warning to those who are considering committing a crime. In theory, prison also deters offenders from breaking the law again, for fear of facing the same recrimination.
4) Rehabilitation – The fourth, often-neglected reason for incarceration is that of producing personal reform in prisoners; helping them to understand their crimes and their ramifications, and providing means for them to become productive citizens after their stint in prison.

The New Zealand justice system has, in recent years, taken measures to reify the first three of these principles, but has largely ignored the latter. You could be forgiven for noting that New Zealand seems a bit short on the ‘clemency and mercy’ thing. In 2010, the same year prisoners were denied the right to vote, the Government introduced legislation spearheaded by the misnomic ‘Sensible Sentencing Trust’ popularly called the ‘Three Strikes Act’. This Act denies offenders who commit one of 40 “serious offences” the chance for parole on the second strike, and legally forces a judge to give the maximum sentence for a third. While it seems to make a modicum of intuitive sense, its implementation both negates the ‘rehabilitation’ aspect of justice and functions as the proverbial ambulance stationed at the bottom of a cliff. This Act is encoded within the principles of deterrence and retribution, but fails to work in conjunction with substantive rehabilitation services – or even analyse why New Zealand’s attempts at rehabilitation are failing.

The most recently discussed policy that affects prisoners is one which would have them performing forced labour for 60 cents an hour (a third of which would go to ‘board’ costs). The policy is likely to be implemented as it has cross-party support, with Labour and the Greens supporting the bill on the grounds of rehabilitation. In truth, the pittance they are paid seems less ‘rehabilitation’ than ‘slave labour’, especially given our justice system’s most insidious failing. Māori, Pasifika and mentally unwell people comprise most of our prisoners, and it is not a stretch to say that some are incarcerated unfairly (New Zealand cops racially profile: they’re four times as likely to prosecute you for things like drugs if you’re brown). If the system itself discriminates against certain maligned groups, if the system doesn’t offer comprehensive rehabilitation pathways, if the system is broke; how can forced labour be considered just?

***

If we consider prisoners’ voting rights against this framework, it becomes clear that prisoners have a pretty rough time of it. They are barred a voice in the machinations they’re implicated in. But perhaps this is for good reason? A common argument voiced by proponents of not allowing prisoners to vote is that by committing a crime, prisoners are tacitly renouncing their rights by tarnishing a social contract. They are denied their freedom, and for good reason; isn’t voting just a manifestation of that freedom?

It’s a slippery-slope argument, but not an entirely uncompelling one; for participating in behaviour that is poor for the community, they are duly excluded from community processes. It’s almost mathematics – as commenter ‘Kelsey’ puts it on one forum, “you don’t play by the rules of a country but want to be involved in a country…” Historically, this has its foundation in notions of ‘civic death’. You are permitted to live, but are alienated entirely from your community as penance.

Another argument is that a criminal history is proof that any vote cast by a prisoner would go against what is good for the community, although this is quite rightly spurned by opponents as infringing upon freedom of speech and belief. There is the claim that by removing voting as a civil liberty, former convicts and parolees come to appreciate this right more, and gain insight into how to wield it responsibly. It performs a deterrent as well as retributive function.

I observe, however, that the Supreme Court of Canada, the European Court of Human Rights, the Constitutional Court of South Africa and the High Court of Australia have all held that measures that remove the right of all prisoners to vote are unjustifiable breaches of the prisoners’ rights. 18 European states allow prisoners to vote without restriction.

These conclusions are formed because disenfranchisement is at odds with democratic process and is a breach of fundamental human rights. Prisoners have rights to bathe, shelter and adequate nutrition, and only hardliners would wish to deprive them of these rights. The right to vote is as essential a right as these. They have a right under the law to have an equal vote to the rest of a country’s citizenry. It becomes a breach of a country’s most excluded and vulnerable citizens’ humanity when this is removed. In imposing a comprehensive ban, New Zealand places itself alongside paragons of human rights like Romania, The Czech Republic, Russia, and the vast majority of the United States.

Over in England, the National Council for Civil Liberties believes “full enfranchisement to be right in principle and in practice”. Closer to home, JustSpeak, a New Zealand legal organisation whose detailed reports recommend comprehensive overhaul of the legal system, notes that prisoner disenfranchisement “deprives a sector of society the right to be represented”*. I spoke to a JustSpeak representative on the phone, who noted that many prisoners have families and children whose wellbeing they care for, making their vote necessary. They are also cognisant that Māori comprise over half of prisoners; Māori disillusionment with the political system is high enough as it is, without over 5000 being expressly prohibited.

It is also actively harmful to prospects of rehabilitation and reintegration into society following the conclusion of their sentence. A Canadian court noted that in practical terms, “disenfranchisement is more likely to become a self-fulfilling prophecy than a spur to reintegration”, while the converse encourages engagement with the community and affairs outside the prison. This is a tremendous boon in reintegration and a crucial step for the rehabilitative component of a prisoner’s sentence.

***

Complicating these findings, however, is the emotive intensity surrounding conversations regarding prisoners’ rights. When I hear of particularly heinous crimes being committed – think violence or sexual assault against children, mass murder, gang rape – my first thought is not “I wonder what measures need to be taken to ensure these people can readapt” so much as it is “bring back the death penalty”. If an impartial bystander feels sickened and enraged, the emotions felt by the victims – or the victims’ families – must plumb unimaginable depths.

It is perhaps these people’s anguish that spurs harsh and parochial measures taken against convicted criminals. Last year, when Arthur Taylor mounted a legal challenge attempting to win an inmate’s right to vote back, the Sensible Sentencing Trust released the following statement: “The Bill of Rights should consider the victims’ rights first and prisoners should have considered those rights. They’ve committed the crime”.

While you can accuse the SST of emotional manipulation and lack of logic, in a way, it’s a simplistic view. In cases such as sexual assault and coming to terms with racism, our society is tentatively embracing integration of experiential knowledge into the framework of cold hard logic. This is, for the most part, a step in the right direction. So who is to tell the grieving parents of a murder victim, the psychologically distraught survivor/victim of rape, that their views hewn by experience are irrational, counterproductive, stupid? You can’t. They’re not. There is also a widespread cry, highlighted by last year’s Roast Busters incident, for harsher, more punitive sentences for crimes of rape; how do we reconcile this with wanting an amendment of our prison system to focus less on punishment, more on reform?

The answer might be that compassion isn’t a one-way street. We can, and we must, extend it to the grieving and hurt as well as the vulnerable. In a way, framing prisoners’ right to vote merely in terms of rehabilitative success is wayward: some prisoners are serving life sentences, ruling reintegration out. Some may prove to be renitent. Some may be in custody their entire lives. Some have committed serious enough crimes to warrant a custodial sentence.

They are people too. Convicts are permitted convictions. They are in the state’s care, and deserve to have their say in it if only because they are, at some level, affected by what goes on in government. They remain a subject of New Zealand, afforded the benefits and the obligations such a status entails. They deserved a fair trial, they deserve safety and dignity, and they deserve the right to vote too. It is when we extend fundamental human rights to the people least palatable to give them to that they become their most essential – and most enshrined. Get on the right side of history. Let prisoners vote without restriction. Our humanity need not be compromised in administering justice.

* At least when it comes to prisoners serving three years or fewer – they stressed their focus on “short-term prisoners”, and, when asked if they supported complete franchisement of prisoners, were evasive and audibly uncomfortable, saying “ideally yes, but…”

THINGS I LEARNT FROM AN EX-PRISONER I MET AND LIKED

  • Fanta is nicknamed ‘Nazi-Cola’ because, during WWII, Germany banned American imports and symbols, so created their own soft drink: Fanta. [uncorroborated]

  • If you’re in prison and you’re jonesing for a cigarette, there is a solution: brew some tea leaves with some of the nicotine patches they give you free, wait for the liquid to evaporate, use a page of the Bible every inmate is given upon arrival as a paper and a filter. Voilà!

  • The worst thing about prison is the interminable, crushing boredom; second only to the food.

  • The penalty for mildly assaulting a Police Officer is much harsher than if you assault a white person or grievously injure a Māori person.

  • There are some really cool programmes in prison; my correspondent favoured the ‘musical rehabilitation’ one.

  • Most guards are power-tripping dicks.

  • The policy that would get most support from prisoners is legalising marijuana.

  • “Only white prisoners would vote National.”

  • Some people really don’t deserve to be there. Some people really really do.

  • Prisoners unanimously think they deserve the right to vote.
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