Abstract
With over 10 million people incarcerated around the world, criminal disenfranchisement has significant implications. This is especially true for the United States, which imprisons and disenfranchises at a higher rate than any other contemporary democracy. Many arguments for and against the disenfranchisement of criminals exist, with the constitutionality of disenfranchisement at the forefront of the discussion.
In her book Punishment and Citizenship: A Theory of Criminal Disenfranchisement, Milena Tripkovic, a lecturer in the Birmingham Law School at the University of Birmingham, presents virtually all sides of the argument and logically and eloquently combs through each one to reach her ultimate conclusion. Tripkovic lays strong foundations for each argument and considers counterarguments when applicable to inform her well-defended theory of criminal disenfranchisement.
The book serves to answer the age-old question of whether the disenfranchisement of criminal offenders has legitimate grounds in democratic countries by examining its empirical and normative aspects. Chapter 1 serves as an introduction to the empirical and normative issues associated with disenfranchisement, which is foundational for the proceeding chapters. From an empirical perspective, Tripkovic discusses how electoral restrictions undermine democracy and disproportionately affect racial minorities, further compromising the premise of democracy. To inform the normative aspect, Tripkovic relies on both penal and citizen theories. First, she determines that although electoral restrictions are applied to serve penal functions, disenfranchisement is separate from punishment since its primary purpose is to target rights directly. As such, she adds a fresh lens to the discussion by viewing disenfranchisement as a sanction on citizenship.
To expand the current understanding of disenfranchisement, which is primarily informed by U.S. practices, Tripkovic presents her results from her original research comparing the suffrage restrictions in 43 European countries. She argues that disenfranchisement is a widespread practice that targets specific offenders to varying degrees. With the existence of a variety of disenfranchisement laws, Tripkovic sets out to determine which, if any, can be normatively justified. The author argues that the common understanding of criminal disenfranchisement as a form of punishment is incorrect. Based on the definitions, aims, and principles of punishment, Tripkovic makes it clear that disenfranchisement is a stand-alone sanction, distinct from punishment.
One limitation of Tripkovic’s analysis of punishment is that she refers to the intent of laws that sanction criminal offenses as securing the conditions for nondomination, which is a characteristic of freedom. However, although the nondomination of the victim is protected, is not the offender now dominated by a higher power? Thus, it may be better to emphasize that the victim’s nondomination is secured by taking the offenders away. Despite this, her conclusion that disenfranchisement is not punishment still stands. Punishment is directed at the criminal act, while disenfranchisement is directed at the criminal’s status as a citizen. Thus, the primary question of concern in determining whether electoral restrictions are justified is what makes an individual a citizen? Also, what is a citizen required to do in order to enjoy their citizenship status? This is the lens through which Tripkovic develops her theory.
In order to inform this new approach to evaluating whether criminal disenfranchisement can be justified, Tripkovic provides a historical account of citizenship and electoral restrictions tracing back to Ancient Greece. Somewhat similar to the penal practices of Ancient Greece, she ultimately concludes that electoral restrictions can only justifiably be applied to certain immoral offenders. Before reaching this conclusion, she outlines three models of citizenship requirements, together covering all possible citizenship conditions. These models include the “sense of justice” model in which a citizen must possess the capacity for a sense of justice, the “civic virtue” model in which a citizen must possess civic virtue, and the “common good” model in which citizens are those who subscribe to their polity’s interpretation of the common good. After describing these three models of membership conditions, Tripkovic operationalizes each one. Once operationalized, it becomes possible to determine whether criminals can be considered citizens. If so, disenfranchisement has no justification.
The operationalizations of each model ultimately lead to the same conclusion: A very small portion of the criminal population violates their citizenship status and can have electoral restrictions imposed. These offenders upon whom disenfranchisement has grounds are those who are incorrigible. They are immoral individuals who committed an offense directly targeting their political community. Most offenders, however, do not possess the qualities that would render disenfranchisement justified. Furthermore, Tripkovic concludes that just because disenfranchisement is justified for a specific set of offenders does not mean it is necessary.
One final critique is the assertion that if there is a possibility that a “disenfranchisable” person could one day develop the necessary citizen requirement, then the restriction of electoral rights would not be justified. This assertion is based on the citizenship requirement of possessing a capability to develop civic virtue. As a result, Tripkovic concludes that if an individual is deemed incapable of developing civic virtue, could that individual at some point develop the capacity for civic virtue? If so, electoral restrictions could not be justified. However, at the time of being deemed incapable of possessing a capacity to develop civic virtue, electoral restrictions can be justified. If, at some point, the offender feels they have a capacity to develop civic virtue, the justification of their disenfranchisement could be reevaluated. Tripkovic touches on this later in the book, but it is disconnected from the current discussion.
In the second to last chapter, Tripkovic presents a guide for developing a new disenfranchisement norm that is normatively justified, which involves first identifying a criminal act that is “disenfranchisable,” then evaluating whether the second precondition for disenfranchisement, the subjective aspect, is met. Her guide is well-informed and practical and deserves thorough consideration.
Tripkovic’s findings and conclusions have significant policy implications that should not be taken lightly. Her theory is well-grounded and has a strong, logical foundation. Punishment and citizenship is a must-read for policy and lawmakers as policies and laws are developed to align with justifiable electoral restrictions. As the practice of disenfranchisement currently exists, especially in the United States, it is not justified, and it undermines democracy.
