Fundamental Human Rights and Voting Rights for the Incarcerated
One of the fundamental human rights according to the International Covenant on Civil and Political Rights (ICCPR) is that of access to the vote. Arguably, the right to have self-determination is critical, and without such a right, equality of treatment is impossible to realize. Politicians will have no incentive to pass laws to protect the rights of groups whose opinion they are not beholden to for reelection. According to the ICCPR, the right to vote should be bestowed “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” (Dhami, 2005, p. 236). Other fundamental human rights, such as the right to pursue a livelihood of one’s choice, to live free and unmolested to express one’s political opinions, to practice one’s religion, and to be safe and secure in one’s person extends from that right to political representation based in democratic ideals.

Unfortunately, despite the fundamental nature of such a right, even many nations which are ostensibly democratic in their focus have passed restrictions upon the right to vote. One of the most common is banning individuals in prison from voting, as is the case in the United Kingdom, and in Australia for any prisoner serving a sentence longer than 5 years (Dhami, 2005). In the United States, because of its federalist system, laws often vary between states. But even when individuals in prison are eligible to vote, they may not be aware of this fact. Voters may lack basic civic literacy to learn “they are eligible to vote, and others may ask for voter registration or absentee ballot request forms, only to be refused by local sheriffs or county clerks” (Paikowsky, 2019, p.833).

Of course, some people might protest that individuals who are jailed should not have a right to vote because they have transgressed the laws of society. But this is a problematic statement in a number of respects. First and foremost, in many nations such as China officials incarcerate individuals for political reasons such as demanding the right to exercise free speech. Secondly, not all prisoners have committed severe transgressions. Finally, the composition of the prison population is such that voter disenfranchisement can have a significant impact upon not simply the immediate electoral results, but the societal changes those results will have. The incarcerated population is more apt to be indigent, due to the inability to secure bail and adequate legal representation, and the types of crimes which indigent populations commit are more apt to result in incarceration or refusal of bail (Paikowsky, 2019). Likewise, incarcerated populations are more apt to be Black, native, and Latino versus the general population as well as homeless or disabled (Paikowsky,...…as poll taxes and literacy tests. Felon disenfranchisement was “narrower in scope than literacy tests or poll taxes and easier to justify than understanding of grandfather clauses” (Arp & Morton, 2005, p. 632). African Americans were incarcerated for minor offenses which would be difficult to defend against, particularly within the legal system which was effectively rigged against them.

Today, it is often argued that mandatory sentencing laws and incarcerating individuals for minor drug offenses often have a similarly chilling effect upon minority communities. This questions the notion that crime can simply be viewed as an individual failing. First, the social conditions which gave rise to the crime and may cause certain crimes to be viewed and punished more harshly must be analyzed. Secondly, the social effects upon the community of punishment (disenfranchisement of members of historically discriminated-against minorities) must be analyzed when passing policy.

Strategies to Limit Structural Barriers

Above all, disseminating information is critical. First, there should be advocates stationed within prisons specifically tasked with informing inmates of their rights, including the right to vote. Secondly, mandatory sentencing laws, possession offenses, even status offenses for juveniles and other laws which more frequently result in the punishment of minority groups should be reviewed for the disproportionate impact upon specific populations and society. Finally, the toll that disenfranchising prisoners has had upon national representation should be calculated on a regular basis.