Fergus O'Dowd (Louth, Fine Gael)

We will decide that one.

Internationally, there is a wide spectrum of approaches in different countries. Canada, the Ukraine, Iran — believe it or not — and South Africa allow prisoners to vote but bar some categories of prisoners. For example, in Australia, prisoners with a sentence of over five years cannot vote. In China, prisoners on death row cannot vote.

It extends to a blanket ban in some countries, such as Russia, and countries which restrict even ex-prisoners from voting, such as the United States. Added to this are prisoners in many countries such as Ireland who can legally vote, but there is no practical organisation or process for them to do so.

The main arguments for giving prisoners the right to vote include the fact that prisoners usually overwhelmingly come from disadvantaged backgrounds and different racial or ethnic groups. Therefore, the exclusion of prisoners' votes discriminates against one ethnic racial class or group. Exclusion from voting may contradict Irish laws against discrimination and possibly the International Convention on the Elimination of All Forms of Racial Discrimination, of which Ireland is a signatory.

We know of no research that finds racial groups to be disproportionately represented in Irish prisons. However, there has been a change and there is a significant increase in the number of non-nationals in Irish prisons. There is some evidence to suggest that increases in racism are linked to increased disenfranchisement policies.

The aim of modern criminal law is to rehabilitate offenders and orientate them positively towards a society when they are released. That is the kernel of what we are trying to do here. Our legal system deals with the prisoner's body, but we do not deal with the mind. Having properly served due process and due time, we try, if possible, to help prisoners get back into society when they have fully discharged their duty to it.

It is argued that the process is assisted by a policy of encouraging offenders to observe their civil and political obligations. This is the prisoner's identification with, rather than alienation from, society. That should be the guiding principle. To deny prisoners a right to vote is to lose an important means of teaching them democratic values and social responsibility. Elections are examples of communities working together for the common good. If some members of the community are prohibited from engaging in elections, the communitarian ideal is undermined.

A citizen's right to vote should depend only on the ability to make a rational choice. The suggestion that prisoners lose the right to vote because they have violated a social contract implies they have a certain type of rationality, and that they have deliberately chosen criminal activity with the knowledge they would lose their voting rights. Without this foreknowledge and rationality — both are highly questionable — this logic fails.

There is no evidence that disenfranchisement deters crime. It may actually foster further criminal behaviour. It can stigmatise citizens. A small portion of research indicates that prisoners feel stigmatised because of a lack of a right to vote, even if these prisoners did not vote in the past. It can become a political football, as it has done in the United States, for example.

The basic principles of electoral democracy are laid down in international law. Article 25 of the International Covenant on Civil and Political Rights declares:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: [...]

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

Article 2 states that this applies to "all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". The European Court of Human Rights has upheld that a blanket ban violates the European Convention on Human Rights. There is no obvious logical link between losing one's liberty and losing one's right to vote.

The arguments that have been used against prisoners voting would include that of equal importance to the concept of rehabilitation is the concept of deterrence. This seeks, by the denial of a range of freedoms, to provide a disincentive to crime. Prisoners have violated a social contract and therefore forfeit the right to participate in the civil process for the duration of their sentence.

This argument is usually not popular. In the United States, a Supreme Court is quoted in upholding the prohibition against prisoners and ex-prisoners. In the United States, 2% of the population is currently disenfranchised. Research indicates that approximately 13% of African-Americans, or 1.4 million people, are disenfranchised. It is a high number. These disenfranchised people represent just over a third, some 36%, of the total disenfranchised population.

In two states in America, research has shown that almost one in every three black people is disenfranchised. In eight states, the number is one in four. If current trends continue, it is projected that the rate of disenfranchisement for black people could reach 40% in the states that disenfranchise ex-offenders.

This relates to the medieval concept of civil death. If a prisoner is not executed by the state, by imposing a civil death the prisoner will suffer as if they were physically dead in that he or she would have no rights of succession or to vote. The concept has a medieval origin, but in modern times it was brought from Europe to the colonies, where many people fully supported it in the 19th century.

Deprivation of the right to vote is not an inherent or necessary aspect of criminal punishment. Neither does it promote the reintegration of offenders into lawful society. Defenders of these laws have been hard pressed to justify them. In a modern democracy like Ireland, there is no place or case for these arguments.

I have spoken about America and the European states. Five other countries in Europe have no provision to allow prisoners to vote. However, these countries are not in the majority. Some 18 states place no voting restrictions on prisoners, and it should be pointed out that Ireland is among them. Although there is no particular ban on prisoners voting in this country, as established by a court case in the past decade, prisoners are currently unable to exercise the right. In France and Germany, courts have the power to impose a loss of voting rights as an additional punishment.

With regard to the United States, everybody will remember the 2000 presidential election and the actions of George Bush's brother in Florida.

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