The disenfranchisement of felons

Law and Philosophy

Volumn 20, Issue 6, 2001, Pages 553-580

  Lippke, Richard L ^a  

^a JAMES MADISON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 0035601266     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1011942626677     Document Type: Article

References (48)

1. See Jamie Fellner and Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (Washington, D.C.: Human Rights Watch and The Sentencing Project, 1998), and Andrew L. Shapiro, "The Disenfranchised," The American Prospect 35 (1997): 60-62.
2. See Jamie Fellner and Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (Washington, D.C.: Human Rights Watch and The Sentencing Project, 1998), and Andrew L. Shapiro, "The Disenfranchised," The American Prospect 35 (1997): 60-62.
3. Richardson v. Ramirez 418 US 24 (1974).
4. However, the Supreme Court has ruled that states may not make completely arbitrary distinctions between groups of felons with respect to their disenfranchisement. See Hunter v. Underwood, 471 US 222 (1985).
5. This figure is taken from Shapiro, "The Disenfranchised," 60.
6. Cited in Shapiro, "The Disenfranchised," 60. See also Fellner and Mauer, Losing the Vote: 8-9.
7. Cited in Shapiro, "The Disenfranchised," 60. See also Fellner and Mauer, Losing the Vote: 8-9.
8. For an overview of disenfranchisement laws in Australia, see Jennifer Fitzgerald and George Zdenkowski, "Voting Rights of Convicted Persons," Criminal Law Journal 11 (1987): 11-39. For a discussion critical of sweeping felon disenfranchisement practices in the United States, as compared with narrowly targeted felon disenfranchisement practices in Germany, see Nora V. Demleitner, "Continuing Payment on One's Debt to Society: The German Model of Felon Disenfranchisement as an Alternative," Minnesota Law Review 84 (2000): 753- 804.
9. For an overview of disenfranchisement laws in Australia, see Jennifer Fitzgerald and George Zdenkowski, "Voting Rights of Convicted Persons," Criminal Law Journal 11 (1987): 11-39. For a discussion critical of sweeping felon disenfranchisement practices in the United States, as compared with narrowly targeted felon disenfranchisement practices in Germany, see Nora V. Demleitner, "Continuing Payment on One's Debt to Society: The German Model of Felon Disenfranchisement as an Alternative," Minnesota Law Review 84 (2000): 753-804.
10. This conception of rights, also known as the interest theory of rights, is usually attributed to Neil MacCormick, "Rights in Legislation," in P.M.S. Hacker and J. Raz (eds.), Law, Morality, and Society (Oxford: Clarendon Press, 1977), pp. 189-209, and Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), pp. 65-92.
11. This conception of rights, also known as the interest theory of rights, is usually attributed to Neil MacCormick, "Rights in Legislation," in P.M.S. Hacker and J. Raz (eds.), Law, Morality, and Society (Oxford: Clarendon Press, 1977), pp. 189-209, and Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), pp. 65-92.
12. My account of the interests designated by the right to democratic participation draws on J. Roland Pennock, Democratic Political Theory (Princeton, N.J.: Princeton University Press, 1979), pp. 441-445, and Thomas Christiano, "Social Choice and Democracy," in D. Copp, J. Hampton and J. Roemer (eds.), The Idea of Democracy (Cambridge: Cambridge University Press, 1993), pp. 173-195.
13. My account of the interests designated by the right to democratic participation draws on J. Roland Pennock, Democratic Political Theory (Princeton, N.J.: Princeton University Press, 1979), pp. 441-445, and Thomas Christiano, "Social Choice and Democracy," in D. Copp, J. Hampton and J. Roemer (eds.), The Idea of Democracy (Cambridge: Cambridge University Press, 1993), pp. 173-195.
14. For an overview of the debate among democratic theorists, see Phillip Green, "'Democracy' as a Contested Idea," in P. Green (ed.), Democracy (Atlantic Highlands, N.J.: Humanities Press, 1993), pp. 2-18.
15. This claim should only pose problems for those who attempt to ground rights in the actual preferences of individuals, rather than in their rational preferences or in a normative conception of the person.
16. See Michael Mushlin, Rights of Prisoners (New York: McGraw-Hill, 1993), pp. 157-161.
17. See Warren Quinn, "The Right to Threaten and the Right to Punish," Philosophy and Public Affairs 14 (1985): 332-333; and Rex Martin, A System of Rights (Oxford: Clarendon Press, 1993), pp. 280-284. See also my "Criminal Offenders and Right Forfeiture," Journal of Social Philosophy 32 (2001): 78-89.
18. See Warren Quinn, "The Right to Threaten and the Right to Punish," Philosophy and Public Affairs 14 (1985): 332-333; and Rex Martin, A System of Rights (Oxford: Clarendon Press, 1993), pp. 280-284. See also my "Criminal Offenders and Right Forfeiture," Journal of Social Philosophy 32 (2001): 78-89.
19. See Warren Quinn, "The Right to Threaten and the Right to Punish," Philosophy and Public Affairs 14 (1985): 332-333; and Rex Martin, A System of Rights (Oxford: Clarendon Press, 1993), pp. 280-284. See also my "Criminal Offenders and Right Forfeiture," Journal of Social Philosophy 32 (2001): 78-89.
20. The view that disenfranchisement is simply an adjunct to legal punishment and therefore not directly related to the achievement of traditional penal aims is stated by John Deigh in "On Rights and Responsibilities," Law and Philosophy 7 (1998): 158, 17n.
21. Several of the arguments in this section might be coupled with retributive approaches to the justification of legal punishment. However, the arguments need not be coupled in this way and are not treated as such.
22. John R. Vile, "The Right to Vote as Applied to Ex-Felons," Federal Probation 45 (1981): 16. Vile rejects most of the arguments for disenfranchisement that he finds in the legal literature.
23. Vile, "The Right to Vote as Applied to Ex-Felons," 15. See also Fitzgerald and Zdenkowski, "Voting Rights of Convicted Persons," 12. A. John Simmons argues that Locke's account of the rights forfeited by punishment is largely retributive in character, but he notes that Locke provides no careful formulation of the doctrine of forfeiture. See The Lockean Theory of Rights (Princeton, N.J.: Princeton University Press, 1992), pp. 149-152.
24. Vile, "The Right to Vote as Applied to Ex-Felons," 15. See also Fitzgerald and Zdenkowski, "Voting Rights of Convicted Persons," 12. A. John Simmons argues that Locke's account of the rights forfeited by punishment is largely retributive in character, but he notes that Locke provides no careful formulation of the doctrine of forfeiture. See The Lockean Theory of Rights (Princeton, N.J.: Princeton University Press, 1992), pp. 149-152.
25. Vile, "The Right to Vote as Applied to Ex-Felons," 15. See also Fitzgerald and Zdenkowski, "Voting Rights of Convicted Persons," 12. A. John Simmons argues that Locke's account of the rights forfeited by punishment is largely retributive in character, but he notes that Locke provides no careful formulation of the doctrine of forfeiture. See The Lockean Theory of Rights (Princeton, N.J.: Princeton University Press, 1992), pp. 149-152.
26. Vile, "The Right to Vote as Applied to Ex-Felons," 15.
27. The criminal law distinguishes felonies and misdemeanors on grounds that are simply too arbitrary for philosophical purposes. Essentially, felonies are crimes punishable by death or incarceration in a state prison, while misdemeanors are crimes punishable by fines or imprisonment in a local jail. See Wayne R. LaFave and Austin W. Scott, Jr., Handbook on Criminal Law (St. Paul, MN: West, 1972), p. 26. Yet we are unlikely to find any more philosophically defensible and clear line separating lesser and greater crimes, and thus the sentences appropriate to each, because in many instances the differences between lesser and greater crimes will be matters of degree. For example, felony and misdemeanor theft may only be distinguished by the value of the property stolen.
28. For discussion of such limits, see John Kleinig, "The Hardness of Hard Treatment," in Andrew Ashworth and Martin Wasik (eds.), Fundamentals in Sentencing Theory (Oxford: Clarendon Press, 1998), pp. 273-298.
29. It is also not obvious, if deterrence is our goal, that the franchise should automatically be restored to offenders once they have endured the other sanctions attaching to their crimes. We would at least have to consider whether the benefits of continuing their disenfranchisement exceeded any losses or burdens imposed by doing so.
30. See, for instance, the recommendations made by the National Criminal Justice Commission in Steven R. Donziger (ed.), The Real War on Crime (New York: HarperCollins, 1996).
31. See, for instance, Wojciech Sadurski, Giving Desert Its Due (Dorderecht, Netherlands: D. Reidel, 1985), pp. 221-258.
32. For criticism of this type of retributivism, see R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), pp. 205-217.
33. Jeremy Waldron, Lex Talionis, Arizona Law Review 34 (1992): 35.
34. Those attracted to more communicative forms of retributivism might suggest that disenfranchisement be used to censure serious offenders or distance the community from their crimes. But again the problem is that various penal sanctions can be used to perform this act of communication, and we need some explanation why disenfranchisement is the most suitable or effective sanction for this purpose. In some cases (e.g., crimes involving direct attacks on democratic political institutions or electoral processes) such an explanation might be available. Yet, as we have seen, most serious crimes do not consist of such attacks. For discussion of a communicative form of retributivism, see Jean Hampton, "Correcting Harms Versus Righting Wrongs: The Goal of Retribution," UCLA Law Review 39 (1992): 1659-1702.
35. I am not suggesting that the death penalty is an inappropriate sanction for such offenders. But there will be many serious offenders who are not appropriate recipients of the death penalty, assuming any offenders are, and it is such offenders that I focus on. Those sentenced to death might also suffer the sort of political death the retributive argument advocates while they await their executions.
36. For one version of the moral education approach, see Jean Hampton, "The Moral Education Theory of Punishment," Philosophy and Public Affairs 13 (1984): 208-238.
37. See Russ Shafer-Landau, "Can Punishment Morally Educate?" Law and Philosophy 10 (1991): 189-219.
38. One of the first philosophers to emphasize this point was Jeffrie G. Murphy in "Marxism and Retribution," Philosophy and Public Affairs 2 (1973): 217-243.
39. See Donziger, The Real War on Crime, pp. 27-30; also Elliott Currie, Crime and Punishment in America (New York: Henry Holt, 1998), pp. 110-161.
40. See Donziger, The Real War on Crime, pp. 27-30; also Elliott Currie, Crime and Punishment in America (New York: Henry Holt, 1998), pp. 110-161.
41. Sourcebook of Criminal Justice Statistics (Washington, D.C.: U.S. Department of Justice, 1995), p. 562.
42. Currie notes that the Hispanic inmate population has more than quintupled since 1980. See Crime and Punishment in America, p. 14.
43. Currie cites estimates that as many fifty to sixty percent of state prison inmates have drug problems severe enough to warrant treatment. See Crime and Punishment in America, p. 166.
44. Currie characterizes the tendency of incarceration to make some offenders worse as "one of the best-established findings in criminology ..." See Crime and Punishment in America, p. 74.
45. See, for instance, Donziger, The Real War on Crime, pp. 99-129. See also Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America (New York: Oxford University Press, 1995).
46. See, for instance, Donziger, The Real War on Crime, pp. 99-129. See also Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America (New York: Oxford University Press, 1995).
47. Concerns have been expressed about how the voting residence of felons is to be determined. Large voting prison populations in rural localities might overwhelm the local electorate. See Fitzgerald and Zdenkowski, "Voting Rights of Convicted Persons," 36-37. One way to address this problem would be to require felons to adopt as their voting residence the last place they lived prior to their imprisonment.
48. Cf. Raz. The Morality of Freedom, p. 171.