discussion and evaluation in the article written by Susan Easton generally more
inclined towards the arguments provided in the case of Hirst v UK which
specifically addressing the issue of whether the disenfranchisement of prisoner
voting in the United Kingdom is appropriate or not. It is highly important for
us to note and consider that every single policy, action and especially
punishment made by the government should be in accordance to the objective of
the action and consistent with the moral judgment of the society. This is to
ensure not only that the objective of the action is achieved and fulfilled but
also to prevent any space for abuse of power and excessive use of force from
the government. Allowing government doing something without a relevant
justified objective and ways is actually allowing them to do whatever they may
think necessary even it is not. Susan Easton had reminds and bring back the
arguments in favour and against the disenfranchisement of prisoner voting by
Hirst and the UK government in the European Court of Human Rights (ECHR).

UK government justify their action on the ban of prisoner voting mainly based
on their belief that it is consistent with the objective of the punishment
which is intended to prevent crime, to punish the related offences, to enhance
civic responsibility and to promote respect for the law.1
The government also believe that this punishment is proportionate to the
intended objective of the punishment as it has exceptions to specific offences.
The government argued that the right to vote is not absolute and it is up to
the government on deciding and determining the limit to this right.2

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on the other hand, directly engaging to the primary argument of the government
by saying that the disenfranchisement is inconsistent with the intended
objectives and there were no evidence to prove that it bears relation to each
other. Even if it is a punishment to the prisoner, it is not proportionate as
it does not relate or depends to the seriousness of the offences committed. It
is also an arbitrary punishment as it is determined by the date of the
conviction and whether or not it is parallel to the date of election is held.3
The disenfranchisement, according to Hirst, is not accordance with the
intention of enhancing civic responsibility as it alienated prisoners from the
society. Hirst in the end argued that the particular punishment used is not
properly justified based on the intended objectives but merely because of the
moral judgment that prisoner is unworthy to vote.4

then brought judgment by the grand chamber in this case. It is worth to note
that grand chamber explicitly stated the measurement used to reach their
decision upon the case which is that every punishment that is conducted by the
government must proportionate to the intended objectives, and must maintain to
the electoral procedure. The grand chamber states that the general automatic
ban by the UK government is not acceptable but court acknowledge that the
government should be given the limit.5
The grand chamber, also, states that the intended objectives by UK government
is legitimate and valid as it is not set specifically in the article 3 of
protocol no. 1, but the measures taken is irrational and unjustified to those
The court also include limited guidelines as to how the punishment should be
conducted, which are must be prescribed by law, cannot be a blanket ban, and
must restricted towards major crimes.7

approaches and opinions taken by Easton have a lot in common with the opinions
by Richard L.Lippke in his article “The Disenfranchisement of Felons”. In this
article, Lippke brought his analysis to justify the disenfranchisement of
prisoner voting to two type of reasons, which are those that independent of the
stated intended aims and that are directly related towards the intended aims.

the first type of reasons, it is believed that the government entitled to
specify any punishment to prisoners and that the government chose
disenfranchisement of prisoner voting because felons show contempt to the rules
of civil society, allowing prisoners to vote is allowing them to have say in
determining who execute the law and also that disenfranchisement is appropriate
for crime that bear the same characteristics with it; electoral offences8.
Lippke stated that on the argument of prisoner show contempt to civil society,
society were built with mutual benefit but the prisoners are unwilling to
burdened the responsibilities by committing crimes and so society have the
right to deprive the right received by the prisoners; the right to vote.9 Lippke
then questioned the argument as being very confusing because it may be true
that by committing certain crime, the felons show contempt to certain concept
in civil society but there is no clear relation why the right to vote is the
that should be taken from them.10
As an example given, robbers may show contempt to the property law but not
towards democracy or electorate.

the next argument on this reason, Lippke stated that it was not plausible because
it was generally known that it is impossible for prisoners to be elected, at
least at the time they were prisoned. Assuming that even if they were allowed
to vote and that they would have some degree of influence in determining the
next administration body, and assuming that they would vote those who invite openness
towards criminal, this elector obviously would not be elected by general
majority. This argument is rejected.

only plausible reason in this argument is that disenfranchisement should be
allowed for those who have committed the electoral offence.11
This reason is consistent with the first one as its punishment is proportionate
to the nature of the crime they committed. Again, if this argument were to be
used to the United Kingdom, the current ban which is blanket ban still does not
parallel to this concept as it narrowed down only to electoral offence and not
to all other offences.

is more important to consider is on the second part of the arguments by Lippke.
He specifically discussed the relation between disenfranchisement as punishment
with the intended objectives stated by the government which are crime
reduction, retribution and rehabilitation12.

Lippke explixitly
stated his doubt on the crime reduction argument. He compares
disenfranchisement with incarceration. He argued that incarceration which
denies more rights than enfranchisement such as the freedom of movement and the
right to associate with anybody whom one pleases which practiced daily, still
cannot fully functioning on reducing serious crime and so there is no justified
reason as why should we believe that disenfranchisement would do so.13
Assuming that even if we live in society that concerned heavily with election
and democracy which highly doubtful, society are not aware with this punishment
as it usually does not stated in the court during their conviction.  

the second argument which justifies disenfranchisement for retributivism, that
the punishment were conducted to restore equal distribution of benefits and
burdens by the law towards the society. The issue raised by Lippke is why
specifically disenfranchisement were used as the punishment while there are some
other ways of punishing them. He quoted Jeremy Waldron saying that under this
principle, penal sanctions should be arranged so that the convicted prisoners
possesses all or at least some of the characteristics that made the offense
Under this argument, only those who commit electoral offence should be punished
and the question of why others who committed other types of offences should be
punished remains unjustified and unanswered.15

the rehabilitative argument, Lippke discussed over whether harsh punishment is
effective in giving rightful teaching to the prisoners.16
It is highly believe that incarceration as form of hard punishment cannot by
itself effect reform in serious offenders though to certain degree, it provides
the prisoners opportunities to reflect reasons why they were there in the first
place. Lippke argued that disenfranchisement is plausible if society or the
prisoners feel the sting of exclusion from the ranks of equal democratic
But he also argued that allowing prisoners to vote may give them incentives to
participate in society and further take serious interest in the
responsibilities towards society.

first part of arguments brought by Lippke were not discussed by Easton
specifically but she mentioned that these kind of reasons should not be used to
justify government’s action. Easton stated that punishment by the government
are only justified if it fulfills the intended objectives which fully discussed
in the second part of the arguments. Both authors take serious considerations
in the arguments relating to the intended reasons as whether it is consistent
or not but yet both authors agree that blanket ban or general disenfranchisement
is not justified and not reasonable at all. It is only justified and plausible
if government were to use the punishment against those who committed electoral

with Lippke and Easton, Manfredi fully agreed with the disenfranchisement of
prisoner voting by the government. In his influential article “Judicial Review
and Criminal Disenfranchisement in the United States and Canada”, he explicitly
stated that there is a principled argument as to why the disenfranchisement of
prisoner voting is justified and legitimate for government to enforce it.

the beginning of his article, he discussed about the conflicting decisions
between Canada supreme court and the United States supreme court on the same
issue, the disenfranchisement. The United States supreme court held that the
disenfranchisement of prisoner voting is legitimate and that any decision taken
by the state or the parliament should be respected by court as long as it does
not contradict directly with the constitution.18
This was categorised by Manfredi as aligned with interpretivist nature which
uphold that judges nullification only legitimate when statute contradict
specifically to constitutional provision.19
Canada, on the other hand, held that the disenfranchisement of prisoner voting
is not legitimate as it violated the Canadian Charter of Rights and Freedom.20 Canada
has been categorised by Manfredi as having the non-interpretivist ideology
which recognise judicial sector as a creative task of identifying and applying
novel rights.21
Canada, based on the current judgment on Sauve is consistent with both types of
non-interpretivism which one acknowledge judicial creativity in reviewing the
process of decision-making and not the substantive choices while the other
extreme one which recognized adjudications as value-oriented judicial activism
on the basis that courts is the only legitimate body to determine it because it
deals regularly with fundamental policy-making problems. But both of these
types of judicial review; interpretivist and non-interpretivist seems cannot
enhance the capacity of court to exercise moral reasoning. Neither
interpretivism nor noninterpretivism promotes moral reasoning as one promotes avoidance
and another promotes will over judgment22.
The United Kingdom has to decide its adjudication position as leaning more
towards interpretivism or noninterpretivism but recent judgment in Hirst can be
a concrete evidence that United Kingdom is a noninterpretivism but a moderate

the second part of Manfredi’s analysis, he described the nature of prisoner
voting disenfranchisement that made it legitimate for government to apply it
and this were  associated with liberal
citizenship and rationale for punishment.23
Classical theorists like Aristotle believes that capacity for moral virtue was
a prerequisite for the right to participate in political deliberation and
decision-making and under this belief, there were some classes of individuals
that are not included in citizenship such as children, laborers and slaves. But
the liberal principles of universal citizenship reflects that there should be
no natural stumbling block to citizenship. Manfredi then argued that any
restrictions imposed for voting must first satisfy two conditions. First,
restrictions cannot be in a positive form such that they had prove themselves
deserve it.24
The second condition is that the restriction must be universal that they could
be impose to any citizen. Under these two conditions, the disenfranchisement
satisfy both because the disenfranchisement does not require citizen to prove
themselves worthy to vote and it even indicate the non existence of civic
virtue of the individuals to vote.25
The disenfranchisement also pass the second condition as it generally exclude
all prisoners without discriminating the races or gender. Manfredi also argued
that the disenfranchisement is not permanent and recognized the capacity and
capability for prisoner to recover and restore their civic virtue and vote
later on.

supporting argument brought by Manfredi to justify the disenfranchisement of
prisoner voting is the one that associate with liberal conception of civic
virtue. This argument suggest that any punishment conducted to criminal not
simply to prevent future criminal but also to show society’s rejection and
disapproval of their wrongful conduct26.
This argument also entails indirectly that citizenship comes with duties and
responsibilities and those who lack of these should be suspended of their right
to vote.

opinions brought by Manfredi can be said as contradict with Lippke and Easton
because the perspective brought by each of the authors. Easton try to analyse
and judge the current decision based on the intended legitimate aim by the
government and use it as the highest indicator to determine whether the
disenfranchisement is legitimate or not while Manfredi approached the question
by understanding the nature of the punishment as whether government has the
right to decide over it or not. It is highly important to note that the
discussion of Manfredi, Easton and Lippke can be quite different because they
were referring to different cases happened in various different countries;
United Kingdom, United States and Canada but this has brought a much broader
perspective. Manfredi also brought a useful analysis when he categorised two
types of judicial activity which are interpretivist and noninterpretivist and
it may be useful for the United Kingdom to solve the issue by determining which
system they are in. There were also a useful suggestions by Canada supreme
court that they would prefer to leave each prisoner for the court to judge each
case-by-case basis so that they can deal with it separately and prevent any
space for generalization in punishment. But this argument can only be used if
there is a complete protocol or procedure as to how judges should do this or
else it would be excessive discretionary on judge’s side. I think that
arguments by Lippke and Easton is much more legitimate compared to Manfredi
because they were referring to the intended aims. If government were allowed to
do something without referring to the legitimate intended aims, it would probably
much easier leading to abuse of power by government.

1 S. Easton, Electing The
Electorate: The Problem Of Prisoner Disenfranchisement (2006) 443 Modern Law

2 S. Easton (n 1), 445

3 S. Easton (n 1) 446

4 Ibid.

5 S. Easton (n 1) 447

6 Ibid.

7 Ibid.

8 Richard L. Lippke, ‘The
Disenfranchisement Of Felons’ (2001) 553 Law And Philosophy

9 Richard L. Lippke (n 8)

10 Ibid.

11 Richard L. Lippke (n 8)

12 Richard L. Lippke (n 8)

13 Ibid.

14 Richard L. Lippke (n 8) 571

15 Richard L. Lippke (n 8)

16 Richard L. Lippke (n 8)

17 Richard L. Lippke (n 8)

18 Christopher P. Manfredi,
‘Judicial Review And Criminal Disenfranchisement In The United States And
Canada’ (1998) 277 The Review Of Politics

19 Christopher P. Manfredi (n
18) 284

20 Canada Elections Act,
R.S.C. 1985, c. E-2, s. 51(e). Section 3 of the Charter declares that “every
citizen of Canada has the right to vote in an election of members of the House
of Commons or of a legislative assembly and to be qualified for membership

21 Christopher P. Manfredi (n
18) 284

22 Christopher P. Manfredi (n
18) 289

23 Christopher P. Manfredi (n
18) 292

24 Christopher P. Manfredi (n
18) 297

25 Ibid.

26 Christopher P. Manfredi (n
18) 299


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