Abstract
Milena Tripkovic’s Punishment and Citizenship represents probably the most refined theoretical work available on criminal disenfranchisement. Tripkovic surveys almost every part of the literature on the topic, thereby supporting her own novel argument defending a limited use of disenfranchisement in the context of modern constitutional democracies. The author masterfully articulates criminal theory, citizenship theory, comparative tools, and criminological insights, showing us the theoretical openness of a book whose main argument, however, stays comfortably in the realm of the normative theory.
The argument of the book is that criminal disenfranchisement – the deprivation of political right that follows a criminal conviction – is not a criminal punishment, which corresponds to the subjects of law as such, but a non-penal sanction directed (nowadays and in the past) to the same subjects in their status of citizens. It is therefore a sanction that pursues its own function; it is subject to its own application criteria. The implications of this conceptual argument (developed in Chapters 2 and 4) are elaborated in the following chapters. Tripkovic considers criminal disenfranchisement a primarily symbolic sanction that denounces an individual failing to live up to the required citizenship standards. In Chapter 5, Tripkovic sets the three notions of citizenship and develops the requirements that each of them place on citizens: (1) following Rawls, the liberal notion requires the capacity for a sense of justice; (2) the republican notion requires civic virtue; and, finally, (3) the communitarian notion must subscribe to a particular interpretation of common good. Then, in Chapter 6, it is affirmed that a lack of these requirements does not demands the disenfranchisement of all criminal. Candidates to be disenfranchised are, in Tripkovic's proposal, a limited group of criminals that happened to be the same in all three citizenship approaches. She uses criminological studies to determine that those affected by Antisocial Personality Disorder are the only criminals that lack the requirements for citizenship (in all three theories) and therefore are the only candidates for disenfranchisement. This implies then that criminals without such disorder should be enfranchised.
Applying her model, the author identifies that the majority of democracies in Europe (as systematized in Chapter 3) follow the guidelines set by some of the notions of citizenship described, at least as a matter of principle, and depart from them on details that could be adjusted without the need to eliminate the institution of criminal disenfranchisement. Tripkovic concludes by emphasizing that criminal disenfranchisement is not a political obligation for the state but a practice that may be justified under the said conditions. Ultimately, the requirements that are set to remain a full member of the community with participation rights depend on the self-determination of each political community (Chapter 7).
I would like to draw attention to two problems that I consider weaken the argument offered by Tripkovic's book. These problems have in common that they are internal to the author's normative approach. Additionally, I would like to make a more general critique of the normative approach as a fruitful perspective for investigating criminal disenfranchisement.
First, I think there is a problem in arguing that citizenship regimes necessarily express exclusive requirements. In this sense, I think that the author too quickly discards a universalist perspective of citizenship based on dignity and human rights and, on the other hand, does not incorporate a democratic perspective of citizenship, according to which the status of member of a political community is not determined by the belonging to a moral community of some kind, but is given by the subjection of said person to the mandates of collective self-determination. This notion of democratic citizenship, present in the discussion on external borders of communities, is perfectly relevant to the question of whether internal boundaries exist.
Second, I found the connection between community membership and the right to vote (and to be elected) to be underdeveloped. These days, it is perfectly possible to affirm that community membership can not only be structured in terms of electoral rights, but also in terms of access to certain social and economic rights, or to fundamental freedoms. Additionally, although the connection between membership and participation is important, it is also possible to maintain that the right to vote has lost the hegemonic place that it once had as the main mechanism of participation in democracy. With all this, I do not want to argue that the symbolic character of suffrage as recognition of the status of member has been completely displaced, but that this opens avenues to challenge the justification of criminal disenfranchisement as an institution that embodies a requirement of citizenship, as the book argues.
My third comment is a vindication of a different approach to the institution of the criminal disenfranchisement to the one developed in this book. While the book rightly introduces the idea of a positive function of disenfranchisement, moving away from a purely justificatory approach, it takes up the path of justification too quickly. A more intense commitment to investigating the social function of criminal disenfranchisement cannot be developed from a purely normative perspective, because the crucial questions, which in my opinion are Why disenfranchise? What do you we achieve with that? and Who benefits from it? are answered too quickly in an abstract and unconvincing way. Lest I be misunderstood, I am convinced of the argument that disenfranchisement is a symbolic way to denounce criminals by excluding them from the circle of citizens. Nonetheless, I think that conclusion is the beginning of an investigation into the political dynamics that underlie this exclusionary drive. Otherwise, it reduces the phenomenon of politics solely to the discipline of political theory.
One must look at disenfranchisement from a more global perspective, including realities other than that of Europe and also other approaches that look at criminal disenfranchisement in other ways. I will mention only three ideas in this regard. First, the thesis that disenfranchisement is a justified form of exclusion from the political community does not appeal to the reality of the United States, Latin America and other places that show features that make such exclusion less acceptable. From a sociological perspective, disenfranchisement may be investigated as fully embedded in practices of structural violence, for example, the racism and systematic institutional biases that diminish the position of vulnerable members of society, leading them to be the natural ‘clients’ of the criminal system. Disenfranchisement may be not an exception but rather part of a continuous system of measures that target and diminish the position of those persons and groups; as such, it is not understood as any more nor less than other mechanisms (e.g. massive incarceration, reductions of thresholds of punishment) designed to disempower those minorities. Second, and to deepen understanding of the social function of disenfranchisement, one must pay attention to the extensive and influential critical theory literature on what it means to be excluded from your own community: to be included but not belong. In this line, the electoral exclusion of criminals may express, but also transcends, the idea that there are tight differences between the ‘good’ members of the community and ‘the others’, an idea that strongly underpins social validation of the state’s punitive apparatus. Criminals’ superfluity as members of the community of citizens from which they are expelled is transformed paradoxically into utility; the threat they pose to the cohesion and purity of the community is transformed into part of the community’s cohesion and purity. The community is both transformed and reinforced through the exclusion of the undeserving. Third, we might reclaim the perspective of criminals and prisoners as political subjects. The boom in the debate on disenfranchisement given by judicial decisions prompted by prisoners’ claims reveals a phenomenon of political activism. By questioning their marginalization, those who are excluded can be agents of political change and institutional transformation. The dynamic dimension of disenfranchisement portrayed by the political debate generated by these challenges is an important feature of any analyses on this topic.
This book makes an important contribution to the debate on criminal disenfranchisement, presenting a thought-provoking argument that will surely make discussion on criminal disenfranchisement to continue being of great academic and political interest. In providing insights on questions of how to connect membership, citizenship and democracy with criminal law and punishment theory, the argument of the book identifies the crucial element of this practice. Its clarity and carefully framed arguments make it a useful and worthwhile read for political theorists, criminal law scholars and others interested in the topic.
