Should felons lose the right to vote while in prison, and perhaps even long after they have completed their sentences? This question has been the subject of much debate in recent years, with the debate as likely to occur in the popular press and legislative chambers as in scholarly journals and seminar rooms. For philosophers and legal theorists, the fundamental issue is whether justice requires, permits, or abhors the disenfranchisement of those who have committed serious crimes. For these scholars and for others, however, this concern has taken on greater practical significance in the light of two episodes early in this century. One was the 2000 election in the United States, when George W. Bush's 537-vote margin over Al Gore in Florida enabled him to win the presidency by way of the Electoral College—a 537-vote margin in a state that denied the franchise to some four hundred thousand ex-felons. The other episode began when John Hirst appealed to the European Court of Human Rights for the restoration of his voting rights while serving a term for manslaughter in a British prison. In response, the court ruled in 2005 that the United Kingdom's law banning prisoners from voting violated the European Convention on Human Rights—a ruling with which the British Parliament has refused to comply. Not only abstract justice, then, but also practical matters involving sovereignty and democratic accountability are among the implications of criminal disenfranchisement.
Anyone who wants to pursue these implications will do well to begin with Milena Tripković’s remarkably compact and lucid Punishment and Citizenship. As a contribution to the disenfranchisement debates, Tripković’s book is in two ways distinctive. First, she provides “a rare combination of normative penal theory and comparative social enquiry,” as Ian Loader notes in his dust-jacket blurb for the book. In particular, Tripković’s “comparative social enquiry” helpfully surveys the range of policies that govern the voting rights of criminal offenders in Europe, which has received less attention in this respect than has the United States. Second, with regard to “normative penal theory,” Tripković argues that disenfranchisement is in some cases a fitting response to crime, but it is not a truly punitive response. As she puts the point in her concluding chapter, “While punishment serves to sanction a behavior that is detrimental to the society, disenfranchisement targets a deplorable performance of a citizenship role” (153).
What Tripković’s survey of European laws reveals is that “European policies are clearly less harsh than American, [but] the difference pertains merely to the degree, and not to the type, of existing policies” (44; her emphasis). This assessment, at the conclusion of chapter 3, emerges from her investigation of the relevant laws in forty-three of the forty-seven member states of the Council of Europe—the four missing members being Andorra, Lichtenstein, Monaco, and San Marino, “for which data could not be found” (34). Of the forty-three, all but twelve impose some form of criminal disenfranchisement. The extent, timing, manner, and length of restrictions, however, vary considerably among the thirty-one countries that do limit the suffrage of offenders and ex-offenders. Even so, it is clear that denying the franchise to criminals “is a widespread practice not only in the United States, but in Europe as well” (45).
But is that practice justified? Tripković believes that it is, but with two important qualifications. First, as previously noted, she maintains that we should regard disenfranchisement not as a form of punishment but as a kind of civic disqualification for those who have shown themselves, through their crimes, to be bad citizens. Second, she holds that we should impose this civic disqualification only in the rare cases of “crimes that are seriously detrimental to fundamental communal values”—the kind committed by “an offender without conscience” (136). For the great majority of criminal offenders, she says, we will do better to treat them as equal citizens, with full voting rights, even as we punish them for their crimes.
Tripković’s arguments in support of these conclusions, which occupy roughly two-thirds of the book, are thoughtful, well informed, and sensitive to the complexity of the issues involved. But are they convincing? In the first instance, Tripković’s claim that disenfranchisement is not a form of punishment rests on the further claim that the now-dominant definition of punishment as “the imposition of unpleasant consequences on the guilty offender for the commission of an illegal act by state authorities” comprises a set of necessary but not sufficient conditions of punishment (53). If these conditions taken together were sufficient, then disenfranchisement would have to count as punishment, for it meets all of them. But other measures, such as remand and the confiscation of criminal proceeds, meet the conditions set out in the dominant definition without counting as punitive measures. It follows, then, that disenfranchisement need not be a form of punishment. Instead, its “purpose” is “primarily symbolic or expressive—it intends to transmit the message of lower citizenship status of the criminal offender” (59).
This argument will not convince those who follow Joel Feinberg, Antony Duff, and others in believing that legal punishment also contains a strongly “expressive” or “communicative” element. On this view, denying prisoners the vote may or may not be desirable as policy, but it is nevertheless punitive in that it communicates disapproval of the offender's conduct. It is true that this disapproval may be only “marginally unpleasant,” as Tripković says, but that is no reason to count it as nonpunitive, especially in view of the “strong dishonorable effect” she attaches to it (58).
For similar reasons, one may doubt that denying criminal offenders the vote should be so rare a practice as Tripković recommends. If the point of disenfranchisement is “to transmit the message of lower citizenship status of the criminal offender,” as she states (59), it seems odd to endorse a policy that would send this message only to offenders “without conscience” (136). Perhaps her point is that the rest of us can draw the proper message from the loss of voting rights even if the disenfranchised psychopaths cannot. If that is the case, though, it seems reasonable to deny the vote—at least temporarily, or at least in some elections—to those who seem capable of grasping the message that disenfranchisement transmits, of feeling remorse for their crimes, and of appreciating the opportunity to regain their status as voting citizens at the conclusion of their sentences.
To disagree with Tripković on these points is to do more than quibble with her claims. Such disagreement, however, does not detract from what she has accomplished in this book. The terms and the significance of the debates over disenfranchisement are now much clearer than they were before the publication of this rich and judicious book. Everyone who cares about either the justice or the wisdom of denying the vote to criminal offenders should read Punishment and Citizenship, and all who do will profit from its author's astute combination of comparative social enquiry and normative penal theory.
