Don’t worry, I don’t expect anyone to read this. But for the record and maybe for future reference of some other students working on the same subject, here is my dissertation with a critical look on the political philosophy of removing the voting rights of prisoners. This was the final part of my MA in Philosophy.

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 PRISONERS’ VOTING RIGHTS OR FELONY DISENFRANCHISEMENT:

WHICH IS THE REAL THREAT TO DEMOCRACY?

“Whoever, in an otherwise popular government, has no vote, and no prospect of obtaining it, will either be a permanent malcontent, or will feel as one whom the general affairs of society do not concern; for whom they are to be managed by others; who has “no business with the laws except to obey them,” nor with public interests and concerns except as a looker-on.”¹

John Stuart Mill, Considerations on Representative Government

“In my country we go to prison first and then become President.”²

Nelson Mandela, Long Walk to Freedom

  INTRODUCTION

Some countries, most notably the United Kingdom and the United States of America, have laws in place which strip citizens who have been convicted of a felony from their right to vote in elections. This practice, known as “felony disenfranchisement”, has been at the heart of a fierce debate in the UK after a ruling by the European Court of Human Rights (ECtHR).³ Not least due to this judgement, the issue has mostly been discussed as a matter of criminal, European and human rights law. This dissertation however will focus on the political philosophy aspect. I hope to add a different perspective and a new set of arguments to an ongoing public debate, hopefully showing the relevance of political philosophy to current political questions.

The dissertation will begin with a brief overview of the factual and legal situation of felony disenfranchisement, before moving on to an equally brief discussion of the role of voting in democracies. The description of the current state of felony disenfranchisement will be disappointingly short for readers wishing to learn more about this issue, but it will have to be kept brief as the approach of this dissertation will be normative rather than descriptive. The chapter about the role of voting will be based on the axiom of modern liberal democracy being the desirable system of government. Readers who disagree with this assessment will not be interested in the peculiarities of voting rights of minorities anyway, I presume.

The main part of the dissertation will consist of an analysis of the justifications provided for felony disenfranchisement under the different theories of punishment (deterrence, rehabilitation, retributivism, incapacitation), under social contract theory and under the moral theories of consequentialist utilitarianism and deontological ethics. I will attempt to examine if the asserted arguments hold up to closer scrutiny, again within the framework of a liberal democracy. If they don’t, I will argue that these rules will have to be scrapped as a liberal state requires a convincing justification for the removal of rights which it grants to the majority of citizens, just as a democracy requires a convincing justification for the different treatment of its citizens with regard to their participation in the democratic process. With respect to democracy, there is the additional problem that felony disenfranchisement is an example where those currently in power pass laws that exclude others (who have been eligible to vote until then) from the democratic process, thus narrowing the electoral base.

When thinking, reading and writing about felony disenfranchisement, the mind will quickly wander onto adjacent territory which is connected to the subject at hand: the restriction of felons’ passive voting rights, i.e. the ban on standing for public office, as well as voting restrictions on other grounds, such as age, citizenship, residence or mental health. While these questions display a considerable degree of commonality with the one at the heart of this dissertation, the number of differences is nonetheless greater. Therefore these equally interesting questions won’t be covered in this dissertation.

  

CURRENT STATE OF PRISONERS’ VOTING RIGHTS

As mentioned in the introduction, this dissertation is interested in the normative philosophical aspects of felony disenfranchisement instead of the factual or legal aspects. The only purpose of the brief overview of the latter in this context is to demonstrate the actual importance and practical relevance of the philosophical musings employed in this dissertation.⁴

UK

In the UK, Section 3 of the Representation of the People Act 1983 states that convicted criminals (not only felons) serving a prison sentence are not eligible to vote in parliamentary and local elections⁵. In 2006, the ECtHR ruled that such a general and indiscriminate ban was disproportionate and therefore in violation of the European Convention on Human Rights⁶. Despite this court ruling and warnings from the Council of Europe, the UK still has not changed the relevant law and the current British Prime Minister has even vowed that it won’t be changed⁷.

The prison population in the UK is currently around 86,000. Considering that these people would be voting in different constituencies throughout the UK, the possibility that they would sway an election is admittedly rather theoretical.

USA

In the USA however, there is far greater practical relevance affixed to this issue: “an estimated 5.85 million Americans are denied the right to vote because of laws that prohibit voting by people with felony convictions”⁸. Because of the disproportionate imprisonment of African-Americans, this part of the population is hit especially hard:⁹ “1 of every 13 African-Americans [is] unable to vote”.¹⁰ Looking at the subgroup of African-American males, the numbers are even more striking: in Alabama and Florida, for example”nearly a third of all black men are permanently disenfranchised”.¹¹

Again, it is hard to predict the outcome of these votes, were they allowed to be cast, because the votes would be spread over 50 different states. But many state elections in recent times hinged on a few hundred votes, as did the Presidential election of 2000 where 537 votes in the State of Florida infamously made all the difference nationwide.¹² Based on the number of citizens affected and the non-representative composition of the prison population¹³, felony disenfranchisement in the USA is likely to influence the outcome of elections, especially in close races.

Because of its federal system, the legal situation in the USA is far more convoluted and can only be touched upon in the briefest of terms: 48 of the 50 states ban convicted felons from voting while in prison.¹⁴ An aggravating factor, and one which will be relevant for discussing the justifications given for these policies, is that several states of the USA also prevent former prison inmates from voting even after they have been released, two states even for life.¹⁵

Other democracies

No other democracy has rules about felony disenfranchisement as strict as those in the USA or even the UK. Many democracies have no restrictions on prisoners voting at all, others give courts the discretion to remove voting rights for a certain period of time if the type and seriousness of the crime permit.¹⁶ This is usually the case with convictions for voting-related fraud or vote-buying. The practical relevance of these statutes is minimal.¹⁷ The Tendency clearly goes towards allowing felons and ex-felons to vote: the Supreme Courts of Canada, Israel, Hong Kong and South Africa have in the past years decided that these countries must reinstate the voting rights of prisoners.¹⁸

While the fact that many thriving democracies work very well without (strict) felony disenfranchisement already suggests that there may be no convincing justification for this practice, I would now like to set out to examine the underlying philosophical ideas and subject them to rigorous scrutiny.

THE ROLE OF VOTING IN DEMOCRACIES

As I mentioned in the introduction, this dissertation has to be based on a consensus about democracy being the preferable system for organising a society or a state. Those who don’t agree with democracy as a concept at all will hardly be bothered by the disenfranchisement of a (small) proportion of the electorate; to them anything that can be said about this subject will be moot.

Voting is an integral part of democracy. It is the bond between the citizen and those who govern him, and only by the citizens retaining the right to vote can they expect that those whom they empower for a few years will govern in their interest, if only for fear of not being re-elected.

In Considerations on Representative Government, Mill stresses the salutary and educational effect of voting on the voters and the benefits to society as a whole by the introduction of as many (different) views as possible into the political process.¹⁹ He argued that society benefits twofold:

“The ideally best form of government, it is […] the one which, in the circumstances in which it is practicable and eligible, is attended with the greatest amount of beneficial consequences, immediate and prospective. A completely popular government is the only polity which can make out any claim to this character. It is pre-eminent in both the departments between which the excellence of a political Constitution is divided. It is both more favorable to present good government, and promotes a better and higher form of national character than any other polity whatsoever.

Its superiority in reference to present well-being rests upon two principles […]. The first is, that the rights and interests of every or any person are only secure from being disregarded when the person interested is himself able, and habitually disposed to stand up for them. The second is, that the general prosperity attains a greater height, and is more widely diffused, in proportion to the amount and variety of the personal energies enlisted in promoting it.“²⁰

According to Mill, voting is thus not only the way in which the citizens protect their own rights and by which they exercise regular checks on the government, but it “has an educational effect as well”.²¹

“[The principal element of] good government [is] the improvement of the people themselves. One of the benefits of freedom is that under it the ruler can not pass by the people’s minds, and amend their affairs for them without amending them. If it were possible for the people to be well governed in spite of themselves, their good government would last no longer than the freedom of a people usually lasts who have been liberated by foreign arms without their own co-operation. […] Any education which aims at making human beings other than machines, in the long run makes them claim to have the control of their own actions. […] Whatever invigorates the faculties, in however small a measure, creates an increased desire for their more unimpeded exercise.”²²

And:

“No doubt, under a government partially popular, this freedom may be exercised even by those who are not partakers in the full privileges of citizenship; but it is a great additional stimulus to any one’s self-help and self-reliance when he starts from even ground, and has not to feel that his success depends on the impression he can make upon the sentiments and dispositions of a body of whom he is not one. It is a great discouragement to an individual, and a still greater one to a class, to be left out of the constitution; to be reduced to plead from outside the door to the arbiters of their destiny, not taken into consultation within. The maximum of the invigorating effect of freedom upon the character is only obtained when the person acted on either is, or is looking forward to becoming, a citizen as fully privileged as any other. What is still more important than even this matter of feeling is the practical discipline which the character obtains from the occasional demand made upon the citizens to exercise, for a time and in their turn, some social function.”²³

These arguments will be revisited in the subchapter on rehabilitation within the chapter on punishment as a justification for disenfranchisement. Mill’s reference on class will be picked up again in the final chapter on the effects of disenfranchisement on contemporary democracy.

In addition to the educational benefit for the citizens, society as a whole benefits “because by the extension of the suffrage, more ideas and viewpoints are introduced into the social discussion and hence more alternatives are considered.”²⁴ Although Mill referred to “previously disenfranchised members of the working class and was a staunch advocate for female suffrage“²⁵, “his primary objective [was] (near) universal suffrage”²⁶, which could now be interpreted to mean the inclusion of those citizens who are (temporarily) serving time in prison or who used to do so.

“For Locke, […] Rousseau and Kant […] citizen participation in authorising and appointing legislators (or directly in making the law, for Rousseau) is how political authority is rendered compatible with the citizens’ natural right to self-determination.”²⁷ Voting is not so much important in that it gives one power over others and their affairs, but that “voting gives me as much power over them as they have over me”.²⁸ As Rousseau wrote:

“Each man, in giving himself to all, gives himself to nobody; and as there is no associate over whom he does not acquire the same right as he yields others over himself, he gains an equivalent for everything he loses.”²⁹

  

THE SOCIAL CONTRACT

Despite having “lived all his life under tyrants”,³⁰ Kant even explicitly mentions a voting-like process (and representative democracy³¹) when describing his social contract model in On the Common Saying: ‘This may be true in theory, but it does not apply in practice’.³² The sovereign must only pass laws that could “have arisen from the united will of a whole people”:³³

“For it ought to bind every legislator by the condition that he shall enact such laws as might have arisen from the united will of a whole people; and it will likewise be binding upon every subject, insofar as he will be a citizen, so that he shall regard the law as if he had consented to it of his own will. This is the test of the rightfulness of every public law. If the law be of such a nature that it is impossible that the whole people could give their assent to it, it is not a just law. An instance of this kind would be a law, enacting that a certain class of subjects should have all the privileges of hereditary rank by mere birth. But if it be merely possible that a people could consent to a law, it is a duty to regard it as just, even supposing that the people were at the moment in such a position or mood, that if it were referred to them, their consent to it would probably be refused.”³⁴

Whether a law is just or not is thus determined by the answer to the question “can the people rationally consent to this law and rationally impose it on themselves […]?”³⁵ One might jump to the apparently evident reply that no one in their right mind would consent to lose their right to vote, but that would overlook that Kant asked for “the united will of a whole people”.³⁶³⁷ With this, it sounds as if he meant the majority of the people, not a unanimous vote of each and everyone³⁸ – which would surely be an impossible demand – although in The Metaphysics of Morals he recognises the criticism of his support for the death penalty and portrays the criticism as follows: “the penalty of death could not be contained in the original civil contract; for, in that case, every one of the people would have had to consent to lose his life if he murdered any of his fellow-citizens. But, it is argued, such a consent is impossible, because no one can thus dispose of his own life.”³⁹ Because this is a portrayal of a criticism lodged against Kant, it is unclear if this requirement of “every one of the people” consenting to the death penalty is an accurate reflection of what Kant thought. He responds with “all this is mere sophistry and perversion of right”⁴⁰, but that is hardly an argument. His subsequent argument as to why the death penalty could receive the support of the citizens in the social contract⁴¹ would equally apply to disenfranchisement, for if citizens were to accept even the death penalty, they would most likely have even less problems with losing the right to vote. Having said so, Kant then states that “it is not to be viewed as if the social contract contained the promise of all the individuals to allow themselves to be punished”⁴², which seems to remove the whole question of criminal law from the realm of the social contract, rendering all social contract related arguments about crime, punishment and disenfranchisement moot.

As Kant included the possibility of representatives being elected for the conclusion of the social contract⁴³, it would not make sense to require going back to each and every single citizen to ask for their consent. For Kant, it was sufficient if the majority of the people could agree with a law, although he did see the danger of a “democratic tyranny that ignores the rights of minorities”.⁴⁴ Returning to the question of prisoners’ voting rights, it does not seem from Kant’s writings that he would have deemed this to be one of those instances of “democratic tyranny”. After all, in this writings about criminal law in The Metaphysics of Morals, Kant writes of crimes which preclude their perpetrators from the ability of being citizens: “Any transgression of the public law which makes him who commits it incapable of being a citizen, constitutes a crime.”⁴⁵ Even more explicitly on the question of disenfranchisement, Kant states: “as a criminal, he cannot possibly be regarded as having a voice in the legislation”⁴⁶. Thus, Kant’s opinion on disenfranchisement may be clear, but his reasons for this belief are less so. Especially the last quote sounds rather apodictic.

The social-contract argument for disenfranchisement

This thought leads to another aspect of the social contract which goes beyond its use for explaining the ties between the citizen and the state and the importance of voting in democratic states. The proponents of disenfranchisement make use of the social contract model as well. The classical argument is “that criminals violate the social contract and thereby forfeit the political rights to which the contract entitles them”.⁴⁷ Because of the alleged voluntary abandonment of the right to vote, this social contract argument needs to be analysed strictly separately from punishment. According to this theory, disenfranchisement “is a voluntary surrender presumed implicit in the crime itself, not a response by others to the crime”.⁴⁸ The social contract argument also has nothing to do with the so-called regulatory argument “ensuring the purity of the ballot box”, which I will therefore discuss in a separate chapter later on. This line of argument rests on the assumption that by violating a law, “the criminal seems to be taking back his agreement to the contract and thus forfeiting the role that the contract had given him in determining the law”.⁴⁹

This could then be equated to that person “put[ting] himself back into either the state of nature or the state of war”.⁵⁰ Locke finds rather drastic words in his Second Treatise on Government for the process of a criminal⁵¹ leaving the social contract and returning to the state of war:

“A criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or a tiger, one of those wild savage beasts, with whom men can have no society nor security.”⁵²

The same argument is found in Rousseau’s Social Contract:

“Every malefactor, by attacking social rights, becomes on forfeit a rebel and a traitor to his country; by violating its laws he ceases to be a member of it; he even makes war upon it. In such a case the preservation of the State is inconsistent with his own, and one or the other must perish; in putting the guilty to death, we slay not so much the citizen as an enemy. The trial and the judgment are the proofs that he has broken the social treaty, and is in consequence no longer a member of the State. Since, then, he has recognised himself to be such by living there, he must be removed by exile as a violator of the compact, or by death as a public enemy; for such an enemy is not a moral person, but merely a man; and in such a case the right of war is to kill the vanquished.”⁵³

Critique of the social-contract argument for disenfranchisement

There are at least three arguments against this interpretation of the social contract theory, the first one criticising the over-interpretation of the criminal act in relation to the social contract. The second argument wonders about the arbitrariness of disenfranchisement as a consequence, even if one accepts that a criminal would remove him- or herself from the social contract. The last argument sees the social contract as a bilateral or synallagmatic contract, rather than a unilateral one.

I don’t agree that a violation of a certain law can be interpreted as a withdrawal from the social contract as a whole. Somebody who steals in one case or doesn’t pay taxes in one year may well believe that laws against theft and tax evasion are both good and necessary in general.⁵⁴ Even if they don’t approve of the specific laws that they have broken, they may well accept the large majority of them that make up the social contract.⁵⁵ “Violating the [social] contract is not denying that it was binding, and thus does not amount to taking back one’s agreement to the contract”⁵⁶, just as “breaking a promise is not the same thing as denying that the promise was binding”⁵⁷. If somebody commits a crime in the full knowledge that, if caught, he or she will be punished according to the law that they are aware of, one might even interpret such a criminal act as expressing the consent to the statutory punishment, and thus as a confirmation of the individual’s commitment to the social contract.

Also, even some serious crimes can be committed without any intent at all (for example involuntary manslaughter). In cases where somebody is sentenced to prison without him or her having had the intention of committing a crime, I find it even harder to construe the intention of leaving the social contract altogether.

Equating breaking the law with denying the authority of the law is an erroneous conclusion.⁵⁸ Especially if breaking the law is supposed to result in such grave consequences as losing the right to vote (in some cases for life), I find the claim that every perpetrator has the intent of withdrawing from the social contract, whether they steal a handbag or rob a bank, far-fetched. I could potentially accept this conclusion for crimes, the commitment of which unmistakably signals that the perpetrator wishes to leave the social contract. In writing this, I am thinking of crimes like mass murder against a large part of the population. Brenner and Caste mention the example of “committed anarchists“ who might consider their acts of law-breaking as a protest against “ the law as a whole“ or acts of treason.⁵⁹ But such crimes are committed rather rarely, so that nothing can be inferred from this theoretical possibility that would be relevant for the large majority of non-society-annihilating crimes that are responsible for filling up our prisons.

The social contract argument in my view overlooks the fact that there is no actual social contract to which each citizen has consented. It’s a thought experiment, introduced and used to justify the existence of a state and a government. Kant explicitly admitted as much when he wrote:⁶⁰

“But it is not necessary to presuppose this contract or compact, to have been actually a fact; nor indeed is it possible as a fact. We have not to deal with it as if it had first to be proved from history that a people into whose rights and obligations we have entered as their descendants, did actually on a certain occasion execute such a contract, and that a certain evidence or instrument regarding it of an oral or written kind, must have been transmitted so as to constitute an obligation that shall be binding in any existing civil constitution. In short, this idea is merely an idea of Reason.”⁶¹

As it is no actual contract, but only a thought experiment, anyone could argue for anything to be the content of such an imaginary contract. The argument about the disenfranchising effect of a citizen committing a crime is thus rather arbitrary. Why should this be interpreted as waiving the right to vote? Why not as the loss of any other rights which are connected to the social contract, like the right to a fair trial, protection against physical abuse and other legal and social rights? Not many philosophical or legal scholars and only few more politicians would seriously advocate that criminals lose their human rights. Another arbitrariness in this context is the line drawn between misdemeanours and felonies.⁶² Working on the assumption that committing a crime constitutes an act of removing oneself from the social contract, it seems strange to me that those concerned should be stripped of their right to vote, but should have the “right” to be housed, sheltered, fed and protected in a prison at the taxpayers’ expense. The decision about which rights to maintain and which to withdraw seems completely arbitrary and cannot be logically concluded from social contract theory.

The opinion that violating criminal law is akin to withdrawing from the social contract would consequently lead to the conclusion that the criminal is no longer part of that particular society at all, leaving the question why he or she should have some rights but not others. In a way, if under the social contract a crime could be interpreted as an act of “leaving the social contract”, it would be more consequential to put all criminals on a ship and remove them from the respective country, like the erstwhile transport of convicts to Australia.

The current practice however shows that we do not regard criminals as losing all of their rights. “Moreover, when they are imprisoned, they not only retain many of their rights, they also retain their legal duties. They are still subject to the criminal law in prison.”⁶³ If committing a crime is construed as leaving the social contract, then I fail to see how persons subject to this consequence can still be expected to keep up their end of the social contract.

This leads straight to the last argument: that the social contract is a bilateral or synallagmatic contract, rather than a unilateral one. A contract includes obligations and rights for both parties.

One could argue that the focus on taking away rights after a member of society violates one of his or her obligations misses the question why somebody can be expected to fulfil all of his obligations when society has previously not fulfilled its obligations to the criminal, e.g. by not providing shelter, safety or education. After all, the reason why the subjects become citizens under the social contract in the first place is because they think they will be better off than without such an organised society. “The social contract makes obligations conditional on receipt of benefits from the rest of society”.⁶⁴

Rawls seems to make a similar point about whole groups in society when he writes that “the duty to comply is problematic for permanent minorities that have suffered from injustice for many years”.⁶⁵

When applying the thought experiment of the social contract to today’s democratic societies, it seems to me that the right to vote is so fundamental in establishing that contract between the citizen and the state that by removing it, the whole contract falls into rescission. This is even more the case in the UK, where the disenfranchised are not only “condemned to the lowest form of citizenship”⁶⁶, but where they find themselves with even less political rights than some non-citizens. Citizens from any of the other 27 EU countries who are resident in the UK are eligible to vote in municipal elections in the UK and for the British members of the European Parliament. It would be a strange social contract where non-citizens can vote, even if they only live in the UK for a short time, even if they never want to become UK citizens, and regardless of their possible criminal past, and British citizens can’t. The two-way ties between the citizen and the state that citizenship is supposed to establish under the social contract theories are being tattered and end up in an almost arbitrary blend of different political rights; exactly the kind of situation that the social contract was supposed to overcome.

To sum it up, the contractarian argument for disenfranchisement is not convincing. It represents the outdated interpretation of the social contract as a model to explain the legitimacy of rule which is no longer suitable to modern and populous countries with millions of citizens with rather differing views about what is right and wrong. A truly bilateral or synallagmatic social contract would both be concerned about the inclusion of all of its citizens and could also benefit from the contribution of those behind bars.

KANT: THE DEONTOLOGICAL PERSPECTIVE

Beyond his contribution to social contract theory discussed in the previous chapter⁶⁷, Kant’s philosophy of ethics might also provide some guidance. For this purpose, I will look at both the Categorical Imperative and the Practical Imperative.

Kant’s moral philosophy must be attempted to be understood in conjunction with his political theory because “his moral philosophy provides the underlying conceptual structure for a community life”.⁶⁸ Not for no reason does Kant’s Categorical Imperative, “the ultimate moral norm for us”,⁶⁹ rest on “their suitability to serve as impersonal laws for everyone”.⁷⁰

When Mill (see above) and others write about “rights”, Kant is much more concerned with ”duty”. He does not dismiss rights, but they “are derivative: they arise only from corresponding duties that the state enforces”.⁷¹ Other introductory remarks that need to be made about Kant’s moral philosophy are that “moral norms cannot be based on experience”⁷² and that “necessity is never an adequate excuse for violating moral standards”.⁷³

Kant’s most famous posit is the Categorical Imperative: “I ought never to act in such a way that I could not also will that my maxim should be a universal law”.⁷⁴ This formula, methinks, is not very helpful in the debate about disenfranchisement of felons. After all, those who disenfranchise (i.e. parliament) do want their action to become universal law. For an entity whose only way of acting is by passing universal law, and whose main purpose is exactly to do so, Kant’s Categorical Imperative doesn’t seem to be much of a constraint.

One could attempt to escape this conundrum by not putting the specific question of disenfranchisement of prisoners to the test, but by more broadly asking if A taking away B’s voting rights can be brought into compliance with the Categorical Imperative. Then, the answer seems to be a clear “no”, because if one person or entity were able to remove another person’s right to vote and this were to become universal law, then in the end nobody would have the right to vote (or only one remaining last person, whose voting right could not be withdrawn by anyone else, would remain eligible to vote). As Kant strived for a representative republic⁷⁵, he could not have desired such an outcome.

But then there is also Kant’s formula of the Practical Imperative: “Act so that you treat humanity, whether in your own person or in that of any other, always as an end and never as a means only”⁷⁶ (the “means-end constraint”).

This is potentially relevant in at least two aspects:

One is in connection with punishment, especially if the punishment of disenfranchisement is supposed to deter other citizens from committing crimes. Deterrence uses person A in order to impress persons B, C and D, with whom A has no connection and upon whom he has no influence, sufficiently to dissuade them from criminal activity. A, the arrested criminal, is being used as a means to achieve someone else’s (the state’s) ends in the person of yet others. This aspect of the Practical Imperative is dealt with in more detail in the chapter on punishment, specifically in the subchapters on deterrence and retributivism.

The other angle from which the Practical Imperative could be applied on disenfranchisement is the question whether prisoners are being used as mere means in respect of laws that are passed over which they have no say. I tend to think that this is not the case and thus no violation of the Categorical Imperative, because with respect to most laws, prisoners are not explicitly “used”. They are merely subject to the laws, just as other parts of the population who are not eligible to vote (for example minors and foreigners). I can think of mainly three groups of laws where the verb “use” could describe the relationship between law and citizen/subject: taxation, military service and imprisonment. The last set of laws are dealt with under the punishment chapter and are indeed a problem under the means-end constraint, as pointed out in the preceding paragraph. Laws about taxation do probably not apply to most prisoners as their income during incarceration will usually be below the threshold for income taxation. Laws about military service, not in place in both the US and the UK anyway, would also not apply to imprisoned felons. 

REMOVAL OF VOTING RIGHTS AS A JUSTIFIABLE MEANS OF PUNISHMENT

If the arguments brought forth for disenfranchisement under the social contract theory are not deemed convincing because voting is understood as a fundamental right rather than a state-created privilege, such policies could still be based on punitive grounds and be justified under any or some of the theories of punishment.⁷⁷ However, in a liberal democracy, any kind of punishment needs to be properly justified, even more so if it consists of (temporarily) removing the eligibility to vote, a citizen’s primary right in a democracy.

The four main theories used to justify punishment are deterrence (which aims to prevent future crime), rehabilitation (which is concerned with the reintegration of offenders into society), retribution (which is concerned with the desert of punishment) and incapacitation (which seeks to make it impossible for offenders to commit further crimes).

Deterrence

The theory of deterrence is based on the aim of preventing⁷⁸ or at least reducing future crime⁷⁹: punishment is justified because or “in as much as it deters people from breaking the law and thus prevents harm in the future”.⁸⁰

Deterrence consists of two main aspects which face quite different philosophical problems and thus always have to be recognised and discussed as two separate aspects:

a) Special deterrence⁸¹ aims at the offender himself/herself. The punishment shall serve as a reminder to the offender of the consequences of his or her criminal action for himself/herself and shall thus make him or her refrain from (at least similar) criminal acts in the future.⁸²

b) General deterrence⁸³ seeks to deter potential imitators. The punishment shall serve as a reminder of what the consequence would be for someone else if they were to break the law in a similar way as the offender in question.

Locke succinctly sums up the reasoning behind both special and general deterrence:

“Each transgression may be punished to that degree, and with so much severity, as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like.”⁸⁴

One obvious problem with general deterrence is that it violates the means-end constraint, postulated by Kant as the Practical Imperative. General deterrence uses one offender as an example for others to learn from it. In that way, general deterrence reflects utilitarian thinking,⁸⁵ which will be dealt with in depth in the final chapter. When A, B, C and D commit the same crime independently from each other and only B is caught and brought to court, it is hard to see why B should bear the burden of being punished in order to serve as an example for the rest of the population. It is hard to see how the (possible future) actions of others, on whom B has no influence, can be used as a justification for punishment in the relationship between the state and B.

Kant could therefore not accept deterrence⁸⁶ and even extended this to special deterrence:

“Juridical punishment can never be administered merely as a means for promoting another Good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another […]. Against such treatment his inborn personality has a right to protect him, even although he may be condemned to lose his civil personality.”⁸⁷

The last half-sentence of this quote about the “loss of civil personality” could be interpreted to allude to punishments like disenfranchisement or other ways of being excluded from the political process. Kant thus seems to have no problem with disenfranchisement, but would base it on the penal theory of retributivism⁸⁸ rather than on deterrence, although elsewhere Kant stated that the sovereign “must punish in order to obtain security”⁸⁹ and that “all punishments by authority are deterrent, either to the transgressor himself, or to warn others by his example”⁹⁰, which sounds exactly like general deterrence.

Another problem with deterrence is that it needs to work in order to justify punishment.⁹¹ While it might seem logical at first that a sentence deters an offender from re-offending and also makes would-be offenders think twice (thus working like the economic [dis-]incentive⁹² that Rawls derides⁹³), the evidence is actually not as overwhelming.⁹⁴ One plausible reason for this is that would-be offenders don’t think about the possible punishment at the time of their offence⁹⁵, for the simple reason that most of them don’t plan to get caught by law enforcement.⁹⁶

If prison (and in some jurisdictions the death penalty) is not a strong enough deterrent, I doubt that not being allowed to vote once every four or five years is something that a burglar or a rapist would seriously consider before perpetrating a crime. This applies even more as a large proportion of crimes are committed by people so young that they are either not eligible to vote or have never voted.⁹⁷ Even if somebody would consider these consequences, they would pale in comparison to the consequences of the imprisonment itself or the physical jeopardy inherent in overcrowded prisons.⁹⁸ The same applies to general deterrence: if released prisoners will talk about their time in prison, they will probably stress the loss of freedom and the physical inconveniences and deprivations, not the loss of their right to vote.⁹⁹

Rehabilitation

The penal justification of rehabilitation states that “criminals have gone wrong and that society has a duty to put them right again”¹⁰⁰ and draws some support for this theory from statistics that show a correlation of offenders and other social problems like poverty and low educational achievement,¹⁰¹¹⁰² although I am not sure if this is a sufficient correlation. After all, correlation does not imply causation and there also a great many number of poor people who do not become criminal as well as a number of wealthy people who become criminal (and often cause more damage than the crimes of poor offenders¹⁰³). Research also suggests that only a small number of offenders are amenable to rehabilitation¹⁰⁴ and that re-offending rates remain frighteningly high despite attempts at rehabilitation.¹⁰⁵

If, as rehabilitation argues, the goal of punishment is the re-integration into society and the preparation for life outside of prison¹⁰⁶, then disenfranchisement is counter-productive. It further removes the felon from the society into which he or she will re-enter after his or her prison time will be completed.¹⁰⁷ The policy of a life-long voting ban even after release from prison (as practised in some US states) is exactly the opposite of rehabilitation. It is a constant removal from one aspect of society and a stigmatisation.¹⁰⁸ Karlan states that ”the very message of such exclusion is to suggest that ex-offenders are beyond redemption”.¹⁰⁹

“If the purpose of correction is to resocialize and reintegrate the prisoner into free society upon his [and her] release, then he or she ought to be treated in prison as a future member of that community.”¹¹⁰ Political participation in the form of voting can be part of that, even though it has to be admitted that the opportunities for political participation of prisoners will never be the same as those for people on the outside (prisoners can’t join political rallies or town-hall meetings or public debates obviously); in my view an even stronger argument to allow prisoners to exercise at least this one political right where it is very easily feasible to treat them equally to people outside of prison. Putting up a ballot box in a prison is no harder than putting up a ballot box in a nursing home. Alternatively, absentee voting or voting by mail can be used.

Brenner/Caste argue that prisoners should even be obligated to vote as part of their rehabilitation process¹¹¹, just as they have to undergo other educational programmes. They also point out that many prisoners will never have voted before, due to their young age and/or socio-economic factors, making this “not so much a matter of rehabilitation, but of the initial integration into society of one who has not previously thought himself or herself a member. For such individuals, integration into society is even more urgent.”¹¹² Political education can thus be regarded as a form of postponed schooling which may have been missed earlier in life. Having the right to vote should make the prisoner-students more receptive towards this form of education.

Basing their argument on the importance that Mill attributed to voting¹¹³, they argue that “both the felon and the society will benefit if the felon is reintroduced into society as an active and interested member”.¹¹⁴ Reiman does not promote such an obligation, but the encouragement of felons to vote.¹¹⁵ Many others share the belief that political participation can have rehabilitative potential.¹¹⁶

There is typically an inevitable tension between deterrence and rehabilitation.¹¹⁷ For deterrence to work, the conditions of prison or other forms of punishment need to be harsh and off-putting. Such conditions of imprisonment may however make it harder for the incarcerated to feel as a desired part of the society that they are supposed to be prepared for under the theory of rehabilitation.

In this particular case of disenfranchisement, both theories cannot support the present policies, so that this tension does not need to be resolved.

Retribution

According to the penal theory of retribution (retributivism) “justice is done by giving offenders what they deserve”.¹¹⁸ Seeing “that justice is done”¹¹⁹ is therefore the purpose of and the justification for punishment. This stems from the belief that a crime has changed a situation or society in a way that “can only be resolved by punishing the offender”.¹²⁰ Retributivism has become the most prominent theory within the philosophy of punishment¹²¹ and Kant could be considered “an exemplar of the retributivist theory of punishment”.¹²² Because deterrence and rehabilitation use the criminal as a means, thus violating the practical imperative or the means-end constraint as discussed above in the subchapter on deterrence, Kant focuses on retribution, although he doesn’t seem to mind if the punishment has a deterrent effects as well¹²³ and elsewhere even states that “all punishments by authority are deterrent, either to the transgressor himself, or to warn others by his example”.¹²⁴

One could argue that retributivism doesn’t offer a justification for punishment at all. Stating that “the purpose of punishment is to see that justice is done”¹²⁵ only leads to the next question about what extent of punishment is “just”. The definition does not explain anything. Honderich puts this much more elegantly when he writes: “the supposed reason is identical with the supposed conclusion”.¹²⁶

Returning to Kant, in his closing remarks in The Metaphysics of Morals¹²⁷, he could be seen as conceding that he couldn’t really offer a reasonable justification for punishment when he refers to “the idea of divine punitive justice”¹²⁸ and when he states that punitive justice “like fatein the old poets, is even above Jupiter [and] announces her law with an iron indeflectible necessity, the grounds of which we are unable to explore”.¹²⁹

Retributivism’s other argument that punishment is necessary to “resolve” the offence is too simplistic and mathematical, as if two minuses make a plus.¹³⁰¹³¹ Kant also refers to the ius talionis (“An eye for an eye, and a tooth for a tooth.”):¹³²

“the undeserved evil which any one commits on another, is to be regarded as perpetrated on himself. Hence it may be said: ‘If you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill yourself.’ This is the right of retaliation (ius talionis); and properly understood, it is the only principle which […] can definitely assign both the quality and the quantity of a just penalty. All other standards are wavering and uncertain; and on account of other considerations involved in them, they contain no principle conformable to the sentence of pure and strict justice.”¹³³

Oddly enough, I often read of this ius talionis as a justification for the death penalty in murder cases¹³⁴, but I struggle to come up with possible scenarios in which this principle of retribution would justify disenfranchisement. These would need to be cases in which the crime was committed by the act of voting or possibly by the act of being elected, like voter fraud or buying votes. At least in the two countries whose laws have given rise to this dissertation, such crimes occur very rarely. For the large majority of crimes for which people have been sentenced to prison terms plus disenfranchisement, retribution is thus no logical justification.

If retributivism and the ius talionis remind us of revenge, Kant confirms this association by writing: “Innocent blood cries for vengeance. – Crime cannot remain unavenged”.¹³⁵ Apart from the questions whether the thirst of those who call for vengeance would be satisfied by criminals being stripped of their right to vote, such arguments sound even less enlightened today than they must have sounded at the time of their writing.

In my mind, retribution cannot work because “two wrongs don’t make a right”¹³⁶: punishment does not undo the crime, and it cannot, for the crime happened in the past. Bentham already pointed out the inefficiency of retribution by arguing that punishment for punishment’s sake just adds more misery to the world:

“The general object which all laws have, or ought to have, in common, is to augment the total happiness of the community; and therefore, in the first place, to exclude, as far as may be, everything that tends to subtract from that happiness: in other words, to exclude mischief. But all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought to be at all admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.”¹³⁷

There doesn’t seem to be a “fit” between the punishment and the crime that retributionists require¹³⁸ when voting rights are taken away in response to crimes other than election fraud, vote rigging or vote selling.¹³⁹ I find it unlikely that criminals will see disenfranchisement as their “just desert”, if they will give much thought to it at all in light of being incarcerated or (in some jurisdictions) even facing execution.

By calling for a punishment that the defender deserves, retribution requires proportionality of the punishment.¹⁴⁰ At least in the states that remove voting rights for life, even after the prison term has been concluded, it is hardly proportional if that result is the same whether the ex-felon had served 3 or 30 years in prison. This “lumps together crimes of vastly different gravity”¹⁴¹ but metes out the same standard punishment. As the proportionality analysis requires the sentencing authority to look at the circumstances of the individual crime, this one-size-fits-all standard disenfranchisement for life punishment cannot possibly be proportional in all cases. This argument could be countered by pointing to the combination of the (length of the) underlying prison term and the concurrent plus subsequent disenfranchisement. Because of varying lengths of prison terms, this combination could be made proportional to the crime in question. But that would in turn raise the question if disenfranchisement is even necessary, if the length of the prison term can be extended or shortened in such a way that it complies with all requirements of proportionality. As suggested by the argument above that felons in all likelihood do not regard disenfranchisement as their “just desert” (at least not in the cases of crimes which were not voting-related), this rather leads to the conclusion that disenfranchisement in addition to prison terms is simply not necessary.

Ewald¹⁴² sees a problem with proportionality even in the cases in which disenfranchisement lasts only for the time of the prison term. Reiman rightfully points out that this is in line with the requirements of proportionality because the length of the prison term itself is or should be proportionate to the underlying crime.¹⁴³

Incapacitation

The purpose of incapacitation is to protect society from criminal activities.¹⁴⁴ The theory that a criminal needs to be physically prevented from committing more crimes is obviously based on the assumption that criminals would otherwise repeat offending, usually in the same sort of way. I am not sure if there is sufficient evidence for such an assumption, and one can easily imagine the most heinous crimes in which punishment would not be necessary if incapacitation was the lone justification for punishment. Somebody who kills both his parents out of hatred for his parents for example could not kill any more parents, so he does not pose any danger to the rest of society.

But in any case, if incapacitation shall serve as justification for the policy of disenfranchisement, “then we need to identify what future bad acts disqualification from voting will prevent an […] offender from accomplishing.”¹⁴⁵ For the overwhelming majority of crimes for which people are incarcerated, from drug-related crimes to burglary to homicide, it is not at all clear how withdrawing the convicted persons’ voting rights prevents them from re-offending either in prison or once they will be released, nor is it conceivable how not withdrawing voting rights from prisoners endangers those whom the criminal law purports to protect. These requirements can only be met in an extraordinarily narrow subset of crimes, all of them voting-related. The purpose of incapacitation may be achieved by withdrawing the right to vote in the rare cases where the crime was committed by or in connection with the act of voting itself, e.g. by selling one’s vote or voter fraud.¹⁴⁶ But even in these few cases, it will be much harder to commit such crimes while voting from inside a prison.¹⁴⁷

On a side note, following through with the logic behind incapacitation in the rare cases of voting-related crimes, the removal of voting rights would actually suffice as punishment against vote-riggers and no prison time would be required, or at least the prison time could be limited to the time around the election, because these type of crimes cannot be committed without an impending election. In these extremely rare specialist cases, it can be justified to punish the convicted felon by withdrawing his or her right to vote, but if any general conclusion can be drawn from this, it is that there are no good arguments to do likewise in the large majority of non-voting related crimes.

Insofar as the incapacitation argument would be stretched to the intention of disabling offenders “from influencing the political process in what would be otherwise non-criminal ways”¹⁴⁸, i.e. by simply casting one vote in accordance with their conscience or political opinion, “incapacitation simply collapses into the traditional […] justifications for excluding individuals who lack particular sorts of virtue”¹⁴⁹, an argument which at its heart has nothing to do with punishment and which I will deal with in depth in the following chapter.

Summary of the chapter on punishment

Having looked at the four main justifications of punishment, disenfranchisement fails to be sufficiently justified by any of them.¹⁵⁰ Deterrence already fails because of the lack of a deterrent effect of disenfranchisement in addition to imprisonment itself. Denying prisoners the right to vote has been found to be rather counterproductive to the goals of rehabilitation. Retribution is no proper justification of disenfranchisement because it will only fit the crime in the rarest of circumstances. Similarly, incapacitation would only justify the disenfranchisement of criminals who have committed voting-related crimes, and only if it cannot otherwise be ensured that they don’t re-offend.

UTILITARIAN, NON-PENAL ARGUMENT: “PURITY OF THE BALLOT BOX”

Possibly noticing that the punitive theories do not sufficiently support disenfranchisement, its proponents at times revert to a different argument for disenfranchisement. This is the claim that “convicted felons lack the civic virtue needed for proper exercise of the vote”¹⁵¹, that “they lack the qualities of mind and character voters ought to possess”¹⁵² or the “requisite shared feelings, values and traditions of the community”¹⁵³, that through their antisocial behaviour they have “raised questions about their ability to vote responsibly”¹⁵⁴ and that in order “to preserve the purity of the ballot box”¹⁵⁵ those serving prison sentences need to be excluded from the election process.

This argument is distinct from the different theories of punishment and the social contract theory, as its stated goal is the benefit of the (law-abiding or at least not incarcerated) rest of the electorate. This consequentialist utilitarian view could live with the acknowledgement that felony disenfranchisement violates the rights of some individuals as long as it benefits more individuals or the rest of society.¹⁵⁶¹⁵⁷

As the choice of antiquated words like “virtue” and “purity” (at least antiquated in the context of modern politics) suggests, this view “rests on a long-since repudiated conception of the right to vote.”¹⁵⁸ Until the 19th century, the ability to vote was seen as a right which “may be enlarged or restricted, granted or withheld, at pleasure, with or without fault”.¹⁵⁹ All the way up to the 20th century, voting rights were sometimes limited to people of a certain wealth or income, to landowners, to people of a certain race or to male voters. The idea of preventing “non-virtuous” citizens – which meant of course citizens not without virtues, but with different virtues than those passing the election laws – did not necessarily rest on criminal activities, let alone criminal convictions of the citizens concerned. In 1885 the United States Supreme Court for example upheld the denial of voting rights to polygamists, irrespective of any criminal prosecution or conviction, arguing that the legislature was free to regulate the eligibility to vote in such a way and that it could even pass a law requiring “that no one but a married person shall be entitled to vote.”¹⁶⁰

The idea that the legislature has wide discretion in determining the pool of eligible voters can no longer be upheld as the right to vote is now regarded as among the most important of a citizen’s rights, which can only be restricted or withheld with the best possible justification. Nonetheless, I want to examine the merits of this particular line of argument insofar as it is used to uphold the current disenfranchisement legislation.

This sort of reasoning belongs to the consequentialist utilitarian school. Consequentialist utilitarianism is quite different from the deontological view of e.g. Kant as introduced above because “it denies that moral rightness depends on anything other than consequences”.¹⁶¹ Utilitarianism calls for “the greatest amount of good for the greatest number” of people.¹⁶² In Kant’s political philosophy on the other hand, “it is not the function of the state to try to balance the interest of different groups” (“neutrality principle”).¹⁶³

Utilitarian proponents of disenfranchisement argue that this policy serves a benefit to society as a whole and that the rights of convicted criminals may be violated, but that they need to be sacrificed for the greater good of more people. This school of thought argues that the process of voting needs to be kept “clean” or “pure” from the influence of criminals who might otherwise taint or endanger the democratic process.

Manfredi argues that a good political system requires virtuous citizens¹⁶⁴ and claims that “some minimal level of civic virtue among citizens” was also required by Aristotle, Locke, Mill, Madison and Rawls¹⁶⁵, although Mill stressed both the salutary effect which voting has on members of the electorate and the benefits to society of as many voters as possible:¹⁶⁶

“Whoever, in an otherwise popular government, has no vote, and no prospect of obtaining it, will either be a permanent malcontent, or will feel as one whom the general affairs of society do not concern; for whom they are to be managed by others; who has “no business with the laws except to obey them,” nor with public interests and concerns except as a looker-on.”¹⁶⁷

Manfredi makes the bold claim that “criminal offenders are in general less empathetic and more impulsive than other citizens” and that they “have manifestly demonstrated that their character is predominantly self-regarding, present-oriented and impulsive”.¹⁶⁸ Clegg states that felons lack “trustworthiness and loyalty”.¹⁶⁹

I disagree with this on at least four levels:

– Who defines what civic virtue is?

– criminal behaviour does not necessarily imply a lack of civic virtue

– no relevance to the voting process

– lack of civic virtue in people outside of prison

Who defines what civic virtue is?

Accepting, for a moment, the utilitarian argument that society as a whole is better off if only citizens with the necessary civic virtue may participate in elections, this leads immediately to the question how civic virtue is defined and who gets to make that definition.

As the historic examples mentioned above illustrate, there were times in our history when the majority found it sensible to exclude women from voting. Now nobody would argue for such a rule. Nor would many argue for maintaining voting limitations along ethnic and religious lines.

Mill, one of the classical utilitarians¹⁷⁰, mentions several other factors in Considerations on Representative Government by which he would like to see the pool of eligible voters to be regulated. At one point, he turns the famous adage “no taxation without representation” onto its head and into “no representation without taxation”:

“It is also important, that the assembly which votes the taxes, either general or local, should be elected exclusively by those who pay something towards the taxes imposed. Those who pay no taxes, disposing by their votes of other people’s money, have every motive to be lavish and none to economize. As far as money matters are concerned, any power of voting possessed by them is a violation of the fundamental principle of free government, a severance of the power of control from the interest in its beneficial exercise. It amounts to allowing them to put their hands into other people’s pockets for any purpose which they think fit to call a public one, which, in the great towns of the United States, is known to have produced a scale of local taxation onerous beyond example, and wholly borne by the wealthier classes. That representation should be coextensive with taxation, not stopping short of it, but also not going beyond it, is in accordance with the theory of British institutions.¹⁷¹

This raises several questions and objections: why would somebody who is not paying taxes because he or she is doing charitable work be less qualified to make a decision about public matters? Would such a policy disincentivise people from performing useful charitable work? What about someone who paid more taxes in the past than most pay in a lifetime, but has now retired and no longer pays taxes? Is the logical extension of this thought that those who pay more taxes should also have more votes? Who votes for the taxes paid by companies? Should there be two types of legislatures, one for decisions which cost money and one for those which don’t incur any expenses for the state?

Mill waters down his own suggestion by including indirect taxes (what would be VAT and other consumption taxes now) in the taxes which entitle their payor to vote and by suggesting a small, nominal tax to be paid by every voter (a poll tax).

“But to reconcile this, as a condition annexed to the representation, with universality, it is essential, as it is on many other accounts desirable, that taxation, in a visible shape, should descend to the poorest class. In this country, and in most others, there is probably no laboring family which does not contribute to the indirect taxes, by the purchase of tea, coffee, sugar, not to mention narcotics or stimulants. But this mode of defraying a share of the public expenses is hardly felt: the payer, unless a person of education and reflection, does not identify his interest with a low scale of public expenditure as closely as when money for its support is demanded directly from himself; and even supposing him to do so, he would doubtless take care that, however lavish an expenditure he might, by his vote, assist in imposing upon the government, it should not be defrayed by any additional taxes on the articles which he himself consumes. It would be better that a direct tax, in the simple form of a capitation, should be levied on every grown person in the community; or that every such person should be admitted an elector on allowing himself to be rated extra ordinem to the assessed taxes; or that a small annual payment, rising and falling with the gross expenditure of the country, should be required from every registered elector, that so every one might feel that the money which he assisted in voting was partly his own, and that he was interested in keeping down its amount.”¹⁷²

Depending on the amount of such a tax, this could be far less disenfranchising than the idea sounds at first. But then, a very low poll tax would open the question “why bother with a poll tax at all?” because surely the voters who pay nothing but the poll tax know that their representatives will have the power to vote for much more spending during their tenure in parliament than the respective taxpayer paid. Ultimately, the suggestion again illustrates the arbitrariness of any rule that seeks to limit those called to cast their ballot on election day.

Mill is however strict about another income-related restriction:

“I regard it as required by first principles that the receipt of parish relief should be a peremptory disqualification for the franchise. He who can not by his labor suffice for his own support, has no claim to the privilege of helping himself to the money of others. By becoming dependent on the remaining members of the community for actual subsistence, he abdicates his claim to equal rights with them in other respects. Those to whom he is indebted for the continuance of his very existence may justly claim the exclusive management of those common concerns to which he now brings nothing, or less than he takes away. As a condition of the franchise, a term should be fixed, say five years previous to the registry, during which the applicant’s name has not been on the parish books as a recipient of relief. To be an uncertificated bankrupt, or to have taken the benefit of the Insolvent Act, should disqualify for the franchise until the person has paid his debts, or at least proved that he is not now, and has not for some long period been, dependent on eleemosynary support. Non-payment of taxes, when so long persisted in that it can not have arisen from inadvertence, should disqualify while it lasts. These exclusions are not in their nature permanent. They exact such conditions only as all are able, or ought to be able, to fulfill if they choose. They leave the suffrage accessible to all who are in the normal condition of a human being; and if any one has to forego it, he either does not care sufficiently for it to do for its sake what he is already bound to do, or he is in a general condition of depression and degradation in which this slight addition, necessary for the security of others, would be unfelt, and on emerging from which this mark of inferiority would disappear with the rest.”¹⁷³

How the exclusion of people on welfare can be reconciled with Mill’s enthusiasm for universal suffrage and his statement

“Independently of all these considerations, it is a personal injustice to withhold from any one, unless for the prevention of greater evils, the ordinary privilege of having his voice reckoned in the disposal of affairs in which he has the same interest as other people. If he is compelled to pay, if he may be compelled to fight, if he is required implicitly to obey, he should be legally entitled to be told what for; to have his consent asked, and his opinion counted at its worth, though not at more than its worth. There ought to be no pariahs in a full-grown and civilized nation; no persons disqualified except through their own default.”¹⁷⁴

is unclear because one can imagine a great many circumstances in which the dependence on welfare has occurred without any personal fault or blame of the beneficiary.

In the same chapter, Mill argues for the requirement of a minimum of certain intellectual abilities or cultural techniques:

“I regard it as wholly inadmissible that any person should participate in the suffrage without being able to read, write, and, I will add, perform the common operations of arithmetic. […] This argument, doubtless, might be pressed further, and made to prove much more. It would be eminently desirable that other things besides reading, writing, and arithmetic could be made necessary to the suffrage; that some knowledge of the conformation of the earth, its natural and political divisions, the elements of general history, and of the history and institutions of their own country, could be required from all electors. But these kinds of knowledge, however indispensable to an intelligent use of the suffrage, are not, in this country, nor probably any where save in the Northern United States, accessible to the whole people, nor does there exist any trustworthy machinery for ascertaining whether they have been acquired or not. The attempt, at present, would lead to partiality, chicanery, and every kind of fraud. It is better that the suffrage should be conferred indiscriminately, or even withheld indiscriminately, than that it should be given to one and withheld from another at the discretion of a public officer. In regard, however, to reading, writing, and calculating, there need be no difficulty. It would be easy to require from every one who presented himself for registry that he should, in the presence of the registrar, copy a sentence from an English book, and perform a sum in the rule of three; and to secure, by fixed rules and complete publicity, the honest application of so very simple a test. This condition, therefore, should in all cases accompany universal suffrage; and it would, after a few years, exclude none but those who cared so little for the privilege, that their vote, if given, would not in general be an indication of any real political opinion.”¹⁷⁵

In the preceding paragraph, Mill himself concedes the problem or arbitrary application of certain standards. My argument goes beyond that, as I try to point out that even the standards themselves may be arbitrary. As scholars of philosophy, we should be aware of the multitude of different ethical and moral opinions, many of which contradict each other, yet none of them clearly prevails. Even if potential voters had to “solve” something like the “trolley problem”¹⁷⁶, any number of philosophers from different schools of thought could probably not agree on what answer would be the best indicator of good moral character. To return to the subject of this paper, disenfranchisement of felons, it is not clear why a felony conviction is to be equated with lack of civil virtue. Why would somebody who has been convicted of a misdemeanour, which is not punished by imprisonment and thus disenfranchisement, a hundred times possess the necessary civic virtue, but a person who got convicted of a felony once would not have it?¹⁷⁷

criminal behaviour does not necessarily imply a lack of civic virtue

The leap from criminal behaviour to lack of civic virtue is a non sequitur.¹⁷⁸

Both Manfredi and Clegg seem to believe that criminals are fundamentally different people from non-convicts, all of the time. Criminological research suggests that this is not usually the case and that delinquents are “like other [people]” of their (predominantly young) age and that many simply “outgrow crime”.¹⁷⁹¹⁸⁰ Many crimes are committed on the spur of the moment or out of a sudden opportunity, less out of inherent character flaws. “The difference between the criminal and the law-abiding citizen may only be a matter of degree”¹⁸¹ with all of us having some elements of Dr Jekyll and of Mr Hyde.¹⁸²

“The fact that many individuals convicted of felonies are permitted to remain in the community – either on probation or parole of after paying fines or restitution – suggests that [the criminal justice system does] not invariably view a [felon]’s conduct as deeply blameworthy.”¹⁸³ If some felons are permitted to continue to live and work in the community, then it is hard to argue that this community is under greater danger if other felons cast a vote every four or five years, even allowing for the potentially increased seriousness of the crimes committed by the later group of felons. This becomes even more egregious if one considers that the decision whether a felon will be released on probation or will have to serve his or her sentence in prison is often not based on the seriousness of the crime committed, but on other factors in the person of the defendant. For example, for the same crime, a jobless person is much likelier to end up in prison than somebody who holds a job. Someone with a prior criminal record (possibly dating back many years into his or her adolescence), might be sentenced to a prison term for the same crime for which someone else would receive a fine or a warning. In all these cases, the underlying criminal act, from which the proponents of disenfranchisement deduct the alleged lack of civic virtue, was the same however.

The belief that people who have once broken the law would not be perfectly capable of following the public affairs of their state or country and of making informed decisions in an election is a non sequitur (and as I have argued above in the chapter on the social contract theory, it does not imply any declaration of intent to leave their particular society). No basis is provided to assume such a connection. This becomes obvious if we consider somebody who has been taking part in elections for decades and then he or she commits a crime for which he or she is sentenced to a prison term with the effect of disenfranchisement. It is hard for me to see why that long-term voter should suddenly become incompetent or lack the virtue, when he had the competence and the virtue to to cast his or her vote maybe just very recently before the incarceration (or at least the person in question was presumed by the law to have the competence and virtue).

To establish such a connection between erstwhile criminal behaviour and missing civic virtue is a genetic fallacy, which is, ironically, also referred to as a fallacy of virtue. These terms describe arguments which evaluate arguments not on the merits or the content, but on the person making them. If the person making an argument or a claim allegedly lacks virtue (in this case because of being a convicted criminal), then that person’s arguments are given less weight or not listened to at all and dismissed outright instead.

It is maybe no surprise that such a genetic fallacy is found here in the arguments of those arguing to uphold disenfranchisement laws because a large school of thought among legal thinkers, legal positivism, bestows greater importance to the laws as they are currently enacted merely due to the fact that they have been passed by a certain institution, for example parliament. In law, this is often combined with the appeal to tradition, another fallacy which occurs when a statement is presumed to be right or correct just because it was right or correct some (long) time ago. What I think of this appeal to tradition has already been put much more succinctly by Oliver Wendell Holmes:

“It is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”¹⁸⁴

Disenfranchisement is indeed “a relic of an era in which exclusion from self-government was the norm for most citizens”.¹⁸⁵

I don’t see any conclusive logic in the assumption that somebody who once stole a car can’t form an opinion about environmental or educational policies, or that somebody who killed another person can’t have a perfectly reasonable opinion about the UK’s membership in the European Union or about Scottish independence.

There is no evidence to suggest that prison inmates are on average or even on the whole less competent, less interested in public affairs, less informed or that they care less about the future of their country. Prison inmates may on average have a lower level of formal education, but they often make up for it with life experience. Being at the receiving end of the power of the state every day and night, they may reflect on the state and its affairs far more frequently than many citizens outside of prison.

I do not want to argue that prisoners are “better” voters than those outside of prison, but if forced to do so, one could argue that prisoners have more time to follow political and world events, to read newspapers, to watch the news, to read books about politics, philosophy, economics and science (especially if they have access to a good prison library¹⁸⁶) and possibly even study at the Open University. They may therefore be much more informed and better equipped to make decisions than those who struggle with a job and/or a family life outside of prison. Witnessing or having witnessed some of the darker aspects of society (poverty, drug abuse, crime), prison inmates might also be more concerned citizens than those in a “middle class bubble”. Finding themselves at the receiving end of the coercive power of the state, prisoners may be tempted to think about exactly that state more often and more deeply. Being locked up in a cell with others all day may be a very conducive environment to foster political discussions.

Again, I am not trying to argue that prisoners are “better” voters than those outside¹⁸⁷, but I hope that this short list has already demonstrated that a case could be made for either side, which means that most likely there is no grave difference in the voting qualities to be found between the population inside and that outside of prison.

no relevance to the voting process

Even if Manfredi’s claims were true, although he offers no proof for his extrapolation, I fail to see their relevance to the voting process. Even assuming that a democracy only works with some level of civic virtue, some identification with the whole, some interest in and information about current affairs and so on, it does not follow that every voter must have the same degree of virtue. There might already be enough civic virtue among the population for a stable and healthy democracy¹⁸⁸, as the relatively stable history of most liberal democracies suggests.

Quite on the contrary, one could even argue that it wouldn’t matter if some voters were of bad moral character, as long as they can judge the moral character of the candidates. Maybe it takes a crook to identify a crook.

Non-criminal voters may also vote for “self-regarding, present-oriented and impulsive”¹⁸⁹ reasons. There is no test to exclude voters who vote for completely selfish reasons (like voting for the abolition of student fees while studying, for pay increases for public sector workers if they work in government, or working for a friend who promised them a job in the cabinet). Likewise, there is no test to exclude voters who award their vote by random choice, by name recognition, according to their parents’ or partner’s instruction or who are drunk on election day. Karlan calls such tests “viewpoint discrimination”¹⁹⁰ and points out that “the exercise of rights so vital to the maintenance of democratic institutions cannot […] be obliterated because of a fear of the political views of a particular group of [voters]”.¹⁹¹ Considering Clegg’s requirement of loyalty, I am inclined to argue that exaggerated loyalty (to one party) might actually be more of a negative than a positive aspect in a democracy.

Lastly, the fear that prisoners may strive to repeal criminal statutes¹⁹² is in my view not necessarily bad. There are a number of activities which used to be criminal and no longer are so now (consumption of certain drugs, gay sex, blasphemy). Societies evolve and so must their laws. Democracies generally don’t have rules excluding those affected by laws (taxpayers, public servants, welfare recipients and so on) from voting, especially as in most countries one doesn’t vote for a certain law or policy, but for a representative in parliament. There is no compelling reason why those (once) affected by criminal law should be excluded from the public discourse about criminal law if those receiving welfare are not excluded from the discourse about welfare legislation or tax consultants are not excluded from voting for parties with a certain tax policy.

lack of civic virtue in people outside of prison

Overestimating the “evilness” of those in prison is closely tied to underestimating the lack of virtue among people on the outside. I doubt that shoplifters are a greater danger to society than the voters of the BNP in the UK or the Front National in France or the NPD in Germany or members of the Ku Klux Klan in the USA.¹⁹³ A hairdresser who doesn’t pay taxes on her income and gets convicted may lack some civic virtue, but the owners and managers of a company who move its headquarters to Jersey or Liechtenstein in order to avoid a far larger tax bill are at least not more virtuous, yet they often do nothing illegal and thus may continue to vote.¹⁹⁴ People can be very uncivic, unvirtuous, selfish and mean without violating any law (lying, manipulative behaviour, wasting resources while others are in need of them, psychopathic egoism e.g. are not crimes), while others commit crimes for perfectly good motives like need or even the intent of helping others. A 2005 study by the psychologists Board and Fritzon examined the character traits of 39 British company bosses and compared it with those of more than 1,000 inmates of the high-security psychiatric hospital at Broadmoor. The result was that the managers had more psychopathic traits than the criminals convicted of serious crimes.¹⁹⁵

The fact that voters are not in prison does not mean that they have not committed crimes, possibly even the same or more (heinous) crimes than those incarcerated. They may only not have been caught. In a study of self-reported crime, 91% of respondents admitted to having committed jailable offenses.¹⁹⁶

“Both criminals and non-criminals are morally mixed. Neither are wholly immoral or wholly moral.”¹⁹⁷ I would not go as far as to claim that both prison inmates and people outside of the prison system are morally identical. It is far likelier that, if morality or virtue could be objectively measured, that there is some difference to be found. But I argue that both groups will overlap considerably and some prisoners will be far more virtuous than some free people, of whom some will be far more anti-social than time-serving convicts. Drawing the line for voting rights along the prison wall is therefore no adequate tool to increase or at least ensure the virtue of the pool of voters. If that was the goal, some other test would need to be found.

To sum it up, the utilitarian argument for prisoner disenfranchisement is deeply flawed and wholly unconvincing. It is rooted in a time when voting was not seen as a fundamental right which may only be restricted for very severe reasons.

The utilitarian goal of “the greatest amount of good for the greatest number of people” is better achieved by letting every (adult) person vote because everyone will be happy about being allowed to participate, and democracy itself ensures that no government can be formed against the expressed will of the “greatest number of people”. And those who stress the “virtue” requirement also believe that political participation enhances virtue.¹⁹⁸

THE EFFECT OF DISENFRANCHISEMENT ON DEMOCRACY

Even in a liberal democracy, the rights of citizens can – and possibly must – be restricted in some cases. In order for these restrictions to comply with the rule of law and not be of an arbitrary nature not worthy of a liberal democracy, these restrictions must comply with certain criteria: the restrictions have to follow certain procedures determined in advance (rule of law), they have to be implemented in the interest of the citizens concerned or the society as a whole and the concerned citizens themselves must have the opportunity to control these measures (in courts and in democratic institutions).¹⁹⁹ The latter includes the right to vote.

These restrictions to the withdrawal or limitation of civil rights suggest that they themselves must not be limited, because if they are not upheld, there will be no safeguard left against the state or the government encroaching on the rights of (some of) its citizens. Once a citizen loses the right to vote, he or she won’t be able to influence the policies that affect him or her, leaving them with no other democratic recourse against any infringement of their other rights. Of course they can still seek redress in the court system, but if the legislature were to decide that redress to the courts would be limited, the concerned citizens again could not change anything about that in the next election.

Thus, an individual’s position in society stands and falls with the right to vote. One could say that without the right to vote, a person is no longer really a citizen. In the mentioned instances of a life-long ban on voting, this is especially grave for convicts who get imprisoned before they reach the voting age as they will never once have the chance to vote.

Members of parliament and other elected officials who seek re-election will be more responsive to constituents who are eligible to vote and who thus take part in the decision whether the politician in question will keep or lose his or her job. Politicians care more about those who can vote than about those who can’t (as can be seen most visibly in immigration policy which predominantly affects foreigners who are not allowed to take part in the political process). It is therefore safe to assume that most politicians will care less about a prison inmate than about a voting citizen on the outside. This has nothing to do with the numbers of prisoners. If a group is barred from voting, they cannot even gain strength in numbers. Not only would most politicians care less about 500 prisoners than about 500 citizens on the outside, but they would even care less about 5,000 prisoners than about 50 citizens on the outside, because those 50 decide whether they will be re-elected or not, while the 5,000 will only have to bear the burden of the laws passed.

Disenfranchisement as Dilution

Some readers, if they have managed to carry on until here, may have been wondering if the issue of prisoner disenfranchisement is really relevant in large democracies with millions of other voters. Considering the sometimes disappointingly low turnout even among the citizens who are eligible to vote, one may be forgiven for initially dismissing the mathematical effect of the potential votes of incarcerated citizens.

However, prisoner disenfranchisement does not only concern the individuals targeted by it. In addition thereto, these policies dilute the voting strength of certain communities.²⁰⁰ These laws “operate as a kind of collective sanction: they penalise not only the actual wrongdoers, but also the communities from which incarcerated prisoners come […] by reducing their relative political clout”.²⁰¹

Because the vast majority of convicted felons hail from lower socio-economic classes, this policy dilutes the representation of poor people.²⁰² The actual effect on the outcome of an election can of course only be guessed on, but it suggests that the concerns and interests of lower socio-economic classes will be underrepresented. As the numbers mentioned in the chapter on the current situation of voter disenfranchisement at the beginning of this dissertation have shown, in the USA there is also a clear racial effect with African-Americans being at the receiving end of disenfranchisement at far above average rates.

Beyond the socio-economic and the racial effects, disenfranchisement can also lead to regional distortions: If the prison population draws predominantly from certain parts of a municipality (e.g. housing estates or inner-city neighbourhoods), then “the effect of disenfranchisement is to dilute the political voice of whole neighbourhoods, including that of their law-abiding residents”²⁰³ because a lower number of voters could, depending on the voting system, lead to an under-representation of that district.

An almost perverse effect of this type of distortion can be seen in the USA, where prisoners are regarded by the Census Bureau as “residents of the jurisdiction in which they are incarcerated”.²⁰⁴ This means that “largely white, rural communities” where the prisons tend to be located²⁰⁵ have “their population totals increased at the expense of the heavily urban, overwhelmingly minority communities from which most inmates come”.²⁰⁶ This has a direct effect on elections because “electoral districts are […] based on population”.²⁰⁷ The perverse effect is that the communities from which the prison inmates predominantly hail suffer when there is another redistricting because their population has been reduced, while those counties where the prisons are located may get another representative because of their increased population although the prisoners themselves, who have caused that increase in population, are not even eligible to vote themselves. The prisoners are in a way an “inert ballast in the redistricting process”.²⁰⁸ Through redistricting²⁰⁹, this has the potential to change the overall composition of legislative bodies.²¹⁰

In response to me raising this problem of the dilution of the vote of certain communities, one might object that this is merely a (potential) side effect which is not relevant when discussing the justification of the disenfranchisement of prisoners, all of whose cases should or could be regarded as individual cases. But, “although fundamental rights are generally conceived of in individual terms, the right to vote is different”.²¹¹ At least in larger states, most voters will realise that their own vote is very unlikely to make the difference in the election they participate in, yet they still do participate knowing that their votes will be aggregated with the votes of like-minded citizens and taken together will be able to influence the composition of parliament. “The concept of ‘representation’ necessarily applies to groups: groups of voters elect representatives, individual voters do not.”²¹² Disputing the statistical or practical relevance of prisoners’ votes is thus akin to disputing the relevance of any other citizen’s vote. But as I have mentioned in the introduction to this dissertation, it has to be based on the assumption – the agreement between the author and the readers – that the arguments contained therein take place in a democratic society in which elections are at least one of the primary ways for citizens to participate in government.

   

CONCLUSION

The effects of felon disenfranchisement have been described as “civil death”²¹³, as being “condemned to the lowest form of citizenship”²¹⁴, “like that of slavery – domination by force”²¹⁵ and as reducing people “from citizens to subjects”²¹⁶.

I hope to have shown that these grave effects are neither justified under any of the theories of punishment, nor under social contract theory, nor are they required or do in any way serve the purpose of safeguarding “the purity of the ballot box”. Quite on the contrary, by excluding a significant enough number of voters to potentially make a difference in elections and even more so by the discriminating effect of disenfranchisement on specific subgroups of the population, disenfranchisement is what really taints “the purity of the ballot box” and the election process in a democracy.