Legal outlier, again? U.S. felon suffrage: comparative and international human rights perspectives

The judiciousness of American felon suffrage policies has long been the subject of scholarly debate, not least due to the large number of affected Americans: an estimated 5.3 million citizens are ineligible to vote as a result of a criminal conviction. This article offers comparative law and international human rights perspectives and aims to make two main contributions to the American and global discourse. After an introduction in Part I, Part II offers comparative law perspectives on challenges to disenfranchisement legislation, juxtaposing U.S. case law against recent judgments rendered by courts in Canada, South Africa, Australia, and by the European Court of Human Rights. The article submits that owing to its unique constitutional stipulations, as well as to a general reluctance to engage foreign legal sources, U.S. jurisprudence lags behind an emerging global jurisprudential trend that increasingly views convicts’ disenfranchisement as a suspect practice and subjects it to judicial review. This transnational judicial discourse follows a democratic paradigm and adopts a “residual liberty” approach to criminal justice that considers convicts to be rights-holders. The discourse rejects regulatory justifications for convicts’ disenfranchisement, and instead sees disenfranchisement as a penal measure. In order to determine its suitability as a punishment, the adverse effects of disenfranchisement are weighed against its purported social benefits, using balancing or proportionality review. Part III analyzes the international human rights treaty regime. It assesses, in particular, Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”), which proclaims that “every citizen” has a right to vote without “unreasonable restrictions.” The analysis concludes that the phrase “unreasonable restrictions” is generally interpreted in a manner which tolerates certain forms of disenfranchisement, whereas other forms (such as life disenfranchisement) may be incompatible with treaty obligations. This article submits that disenfranchisement is a normatively flawed punishment. It fails to treat convicts as politically-equal community members, degrades them, and causes them grave harms both as individuals and as members of social groups. These adverse effects outweigh the purported social benefits of disenfranchisement. Furthermore, as a core component of the right to vote, voter eligibility should cease to be subjected to balancing or proportionality review. The presumed facilitative nature of the right to vote makes suffrage less susceptible to deference-based objections regarding the judicial review of legislation, as well as to cultural relativity objections to further the international standardization of human rights obligations. In view of this, this article proposes the adoption of a new optional protocol to the ICCPR proscribing convicts’ disenfranchisement. The article draws analogies between the proposed protocol and the ICCPR’s “Optional Protocol Aiming at the Abolition of the Death Penalty.” If adopted, the proposed protocol would strengthen the current trajectory towards expanding convicts’ suffrage that emanates from the invigorated transnational judicial discourse.

Vox Populi, Vox Dei? A closer look at the ‘public opinion’ argument for retention

The Japanese government’s justification for retaining the death penalty is that abolition would erode the legitimacy of and public trust in the criminal justice system, leading to victims’ families taking justice into their own hands. This justification is based on the results of a regularly administered public opinion survey, which is said to show strong public support for the death penalty. However, a close analysis of the results of the 2014 survey fails to validate this claim. Just over a third of respondents were committed to retaining the death penalty at all costs, while the rest accepted the possibility of future abolition, with some of them seeing this as contingent on the introduction of life imprisonment without parole as an alternative sentence. These findings hardly describe a society that expects the strict application of the death penalty and whose trust in justice depends on the government’s commitment to retaining it. My reading of the 2014 survey is that the Japanese public is ready to embrace abolition. Japan, after all, is a signatory to the International Covenant on Civil and Political Rights, which calls on states not to delay or prevent abolition, so this should be welcome news for the Japanese government!

Paradise postponed? The Department of National Heritage and political hegemony

Established following the Conservative Party's election victory in April 1992, the Department of National Heritage has been heralded as an important stage in the growing recognition of the significance of the leisure industry to Britain. By combining, for the first time, responsibility for sport, tourism, the arts, libraries, heritage, broadcasting and film, and by providing them with Cabinet representation, a unique opportunity has, seemingly, been provided to develop and promote the interests of leisure in Britain. This paper takes the view that although this initiative has been broadly welcomed, there are important inconsistencies which require attention. On the one hand the selection of the portfolio appears somewhat eclectic. On the other hand, it is questionable why such a department should have been developed at all. An inspection of the implicit ideology suggests that rather than the traditional use of the state to promote leisure interests, the introduction of the department signifies a shift to the use of leisure to promote the Government's interests. Thus the new Department of National Heritage is to be used as a central feature in the legitimation of the government's political programme. Rather than emphasising its traditional quasi-welfare role, the new place for leisure and heritage is firmly in the market economy. Whilst a leisured society may be the epitome of post-industrialism, therefore, the citizen rights claim for access to leisure activities can only be secured by engaging with the market. This legitimised construction of post- modern citizenship is at the centre of a new political order where choice has been replaced by means and where the classless paradigm championed by the Prime Minister will be a classlessness of constructed omission.

Planning, conservation and political ideology: the British case

This paper examines some broad issues concerning the role that conservation policy plays in statutory planning in Britain. It argues that planning contains a number of different, often conflicting, objectives. Conservation, in contributing to one of these objectives, exacerbates this conflict. The paper further argues that since different objectives are accorded different priorities depending upon the prevailing political ideology, conservation policy is not only operating within the context of possibly opposing planning objectives, but also within a particular political environment which will separately determine the degree of importance attached to it. The British example is used to explore these themes, particularly in examining the ideological basis for the redefinition of preservation and protection away from their welfarist traditions towards issues of private rights and market supremacy. The paper concludes that rather than contributing to social welfare, planning and conservation policy is now contributing to the increasing division between rich and poor in society.