Criminal Disenfranchisement and Democratic Values-Are They Compatible?

Criminal disenfranchisement-the act of depriving individuals convicted of a crime of their political liberties- is one of the most hotly contested issues of our current political debate, particularly blanket criminal disenfranchisement which persists in much of the developed world. And just as with most of the debate that goes on in this day and age, arguments on this topic usually boil down to emotional appeals such as “so you want to let murderers vote!” (a response I got from a girl on Tinder when I posed this question in my bio).

In this article I will argue that the default position should be that all criminals maintain the same political liberties as non-criminals. Yes. this does mean that we should be letting murderers vote- but I believe the justification I give for this should be logically satisfying. This article is for everyone interested in politics and criminal justice-from those who are strongly against the idea of enfranchising criminals to those who simply wish to equip themselves with more convincing arguments to defend a position they already hold.

I should note that this piece is adapted from an essay I wrote for my undergraduate degree. While I have tried to make it accessible it may still read as overly academic in parts. This doesn’t mean that it is reserved for those with an academic background(I am only an undergraduate myself), only that it may require careful reading if you aren’t used to this style. You have been warned.

I wish to lay out a set of conditions upon which a state can justifiably deny a felon their political rights of participation. I will formulate these conditions quite specifically using a Rawlsian conception of justice (don’t worry I’ll explain this). The two conditions demand demonstrable evidence that (1) the particular loss of political liberties is deserved and (2) the loss of political liberty is justified by the prevention of a greater net loss of liberty. Given this, I do not conclude that criminal disenfranchisement is fundamentally incompatible with democratic values. However, the bar is set so high that I find it unlikely that they will ever be met.

The bulk of this article will be devoted to laying out these conditions and justifying them. I utilise Rawlsian institutionalism whereby rules for institutions are to be developed with the consequences in mind while the particular application of these rules is to be done deontologically (1955). This means that I would be satisfied leaving the particular application of the conditions up to the discretion of the judge in each case. It is this difference between rules for background justice and rules for particular application that allow me to conclude that blanket criminal disenfranchisement is incompatible with democratic values. If the conditions must be demonstrated to be met in each case then it is illogical and immoral to allow for blanket criminal disenfranchisement-such a policy would assume that every case would meet the conditions which is, as we shall see, simply not true. This paper will not contain an extended discussion on what particular cases may warrant disenfranchisement, but I do endorse Zimmermann’s proposal that political wrongdoers may be those most likely to meet the necessary conditions (2019).

Establishing the Rawlsian Framework

In this section i will lay out the fundamental ideas of John Rawls’s Justice as Fairness, which forms the basis of my own argument here. Rawls seeks to investigate justice- how the institutions of a society are to be structured to maximise the “fair terms of cooperation between citizens regarded as free and equal” (Rawls, 2001, 8). He advocates for a procedural concept of justice, exemplified in his thought experiment-the ‘original position’ (Rawls, 1971, 119). This is really an amazing example of political philosophy and I urge you, if you take nothing away from this article other than this, go and research this idea for yourselves. It imagines wholly rational, self interested individuals who are tasked with creating the basic structure for a society in which they are to live. The catch is, however, that they are behind a ‘veil of ignorance’-they know the basic facts about the word but nothing about themselves (18). They do not know their natural characteristics (race, sex, intelligence…); their inherited social position (family wealth, place of birth…); or their personal moral and psychological dispositions (what they see as valuable, what sort of life they may want to live…). This, brilliantly, forces them to be fully impartial, considering all types of people who may exist in society as if they were them. This combination of rationality, self-interest and impartiality, Rawls suggests, leads them to just conclusions on how their society should look. These conclusions are two principles of justice which are to guide the basic structure of a society:

“(a) each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and
(b) Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be the greatest benefit of the least advantaged members of society (the difference principle)”

(Rawls, 2001, 42, emphasis added)

Pretty simple ey? These short conditions have huge implications for society ranging from its economic makeup to family structures, but that is all for another time. Next I will go into how they are relevant to our task at hand-that of criminal disenfranchisement. First, we must note that these principles must satisfy the condition of lexical priority (Rawls, 1971, 43). This means that basic liberties cannot be sacrificed for the social or economic benefit of some peoples in society-they can be “limited or denied solely for the sake of one or more other basic liberties.” (Rawls, 1993, 291).

Democratic Values

Now we can move on and gain an understanding of Rawlsian democratic values. Rawls affirms ‘political liberties’ as a basic right- the liberty of political participation (295). Crucially, the political liberties are the only ones which are to be constitutionally guaranteed their fair value, meaning that people “similarly gifted and motivated have roughly an equal chance of influencing the government’s policy” (Rawls, 2001, 46). So, “all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply” (Rawls, 1971, 221).

These rights include equal voting in frequent and democratic elections, the right to hold public office, the right to be informed on political matters, and the right to form political associations ($36). It would then follow that any and all of these rights, hypothetically, can be limited or denied. Therefore, I will treat disenfranchisement as the limitation or restriction of any political liberties.

I will briefly delve into why Rawls places such importance on the political liberties. He gives two justifications- what I will call the procedural argument and the rights protection argument. The former suggests that democracy is a tool by which a society can maintain justice. As the original position is the first best way of achieving justice, the second-best way is emulating those conditions in the real world as a decision-making process, to the furthest extent possible (222). Ensuring the fair value of the political liberties is the best way of doing this. Using this argument, then, political participation is a valued liberty insofar as it is useful for replicating the conditions of the original position. If these conditions could be replicated some other way, then there may be a case for restricting said liberties. The ‘Rights Protection’ argument gives priority to the political liberties because they are the primary way citizens are able to protect their various other rights (Rawls, 1993, 361). Only via political participation can citizens ensure that they are considered and thus not deprived of their liberties.

Taken together these arguments can help guide decision making on when disenfranchisement may be allowed and when it may not be. It would seem that a loss of political liberties can be justified in two ways. (1) if it moves a governing body closer to the ideals of the original position and/or if it improves the ability for citizens to protect their other basic rights, to the extent that political participation can cover this (political liberty protection justification); and (2) if it is necessary to directly protect some other liberties (non-political liberty protection justification). These justifications will be discussed briefly in section 2.0.

Rawlsian Conditions for Criminal Justice

Hopefully that wasn’t too complex but if you are left a little bamboozled a re-read may be useful. After, all understanding the basics is essential to understanding the rest of this argument. Now I will apply the basics for the first time, to general criminal justice. Donnelly invites us to imagine two people behind the veil of ignorance (which, if we remember obscures all knowledge about themselves) who, upon its lifting, will be either the perpetrator or the victim of some breach of liberty. What sort of criminal justice system would be established by these two individuals? (Donnelly, 1990, 766) Using the principles of justice as a guide we can build an idea of what this system would look like.

As stated previously, basic liberties can only be limited for the sake of other basic liberties and, once we take into account the difference principle, we must have to justify this loss of liberty to those who may lose it (Rawls, 1971, 231). Donnelly elucidates these considerations into two principles of criminal justice:

“(1) Criminal Punishment is permitted only if it is demonstrated that it serves the goal of crime control.
(2) Criminal Punishment is permitted only if it demonstrated that the person on whom it is imposed deserves that punishment.”

(Donnelly, 1990, 770)

I would amend the first principle to read “…serves the goal of a lesser net loss of liberty” as this makes the condition broader. I would also stipulate that the punishment needs to be necessary to the goal, not merely sufficient (meaning that there is no other way to achieve it). This makes more when we account for the difference principle as the punished should only be made worse off to the extent necessary for some goal.

Why accept these conditions? In ‘Two Concepts of Rules’, Rawls critiques act utilitarianism, and ‘summary rule utilitarianism’ in favour of a ‘practise conception of rules’ (1955, 19). He does this to elucidate the problems of mainstream utilitarian thinking. Acts do not exist in a vacuum and have wide spreading implications in society. Rawls uses the example of punishing the innocent. He asks us what the consequences would be of allowing innocents to be punished as part of a criminal justice institution. Not only would it nullify the effectiveness of crime control- no one would be deterred from committing a crime if they may be punished whether they committed the crime or not, but it is highly unlikely that such a policy would create a ‘utility maximising’ society. Life would not be very good if you could be punished at any time for something you did not do. Therefore, Rawls makes his distinction between rules and acts. Rules that guide institutions and practises are to be formulated with the consequences in mind; however, when making individual decisions within said institutions one is obliged to follow whatever the rules stipulate (6). From here, then, we see the first building blocks of the original position which is that situation in which we are able to perfectly build institutions that are to form the basis of society.

Hopefully it is now clear why desert is a necessary condition for punishment-it would not be a desirable choice for those in the original position to allow the punishment of innocents. Equally, punishment must serve some goal. The existence of any institution or rules entails that some goal exists. A system of punishment that deprives people of certain liberties would be set up only insofar as it is necessary to prevent a greater loss of liberty. This would be established as a rule because those in the original position could well be the person being punished and thus would not desire any more punishment than necessary.

It is important to note the use of the word necessary. This implies that there must be no alternative punishment that would be less of a loss of liberty for the punished while still resulting in the same (or a lesser) net loss of liberty. So, it is not enough that whatever punishment would be sufficient for the protection of whatever liberties. There must be no alternative in which the punishment is better off.

Disenfranchisement as a punishment

Now (finally) I will discuss the implications that all of this has for criminal disenfranchisement. As we have seen, the ‘political liberties’ are basic liberties. This means that their restriction as a form of punishment has to be justified in the same way as any other punishment that deprives one of liberty. Using the conditions derived above we can arrive at two specifically focused on criminal disenfranchisement:

1. Criminal disenfranchisement is permitted only if it is demonstrated that it is necessary to serve the goal of a lesser net loss of liberty.
2. Criminal disenfranchisement is permitted only if it is demonstrated that the person on whom it is imposed deserves that punishment

These are our Rawlsian conditions which must be met to justify criminal disenfranchisement. I think this places me in a position to conclude that criminal disenfranchisement is compatible with democratic values, subject to these stringent constraints. None of the basic liberties are absolute and, as such, the political liberties which constitute Rawlsian democratic values can be restricted. I would recommend that some version of these criteria be written into law, alongside appropriate justification to guide judgement in particular cases. It would then be up to the judge in a particular case whether the accused meets the conditions necessary for criminal disenfranchisement (Rawls, 1955, 29). This would have to be demonstrated by the prosecution as the assumption is made in favour of universal political liberties. This concludes the first part of my argument, next I will turn to applying these conditions, particularly focusing on why the arguments that have been made demand that we abolish blanket criminal disenfranchisement.

Applying the conditions and their implications on blanket criminal disenfranchisement

As I stated at the very beginning of this article, blanket criminal disenfranchisement is the real ‘juicy’ issue that is at the centre of contemporary political debate. 48 states in the US deprive all felons of the right to vote, with many not regaining that right after completing their sentence(Siegal, 2011, 89). This is also an issue over the pond in the United Kingdom. Blanket criminal disenfranchisement was the focus of ‘Hirst V UK’ which saw the European Court of Human Rights judge this type of disenfranchisement as a violation of ECHR law (2005). The reasoning given for their conclusion is very interesting: A loss of particular rights must… “not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate”. (14) These court remarks echo our conditions-requiring proportionate punishment (desert) and that a loss of rights is only justified to the extent which it is necessary to pursue a legitimate goal. As the ECHR concluded, disenfranchising all criminals does not meet these conditions. Such a policy is imposed indiscriminately and as such has no regard for the pursuit of a legitimate aim (16).

Furthermore, I have stated previously that the burden of proof should be on the prosecutor rather than the defendant. If a state desired to disenfranchise all criminals, then they would have to prove that all criminals, both present and future, would meet the conditions. This is an impossible task and one that would, practically, revert to case by case assessment, which is the policy I endorse. Therefore, I deny that blanket criminal disenfranchisement is compatible with democratic values.

To make a final point I would like to address the ‘argument’ made by the girl on tinder (and many right leaning commentators) that appeals to the fact that I have to accept that murderers will be able to vote. To address this I would like to imagine that we are in court and deciding whether a murderer should be disenfranchised. It would need to be proven that by having the vote the convicted murder would be able to cause a loss of liberty which he would not otherwise be able to if deprived of their political liberties. I stated previously that a loss of political liberties would need justifying by either (1) protecting political liberties or (2) protecting non-political liberties. How is a murderer to harm non-political liberties? Incapacitation via imprisonment sufficiently protects the public from their non-political liberties being violated, and there is no evidence to suggest that adding disenfranchisement as a punishment would is an effective deterrent against committing murder. Some argue that if murderers could vote they would vote for a ‘murder party’ which legalises murder(again, a common line from Tinder). But, this is accounted for by the broader scope of Rawlsian justice which does not permit a party to run on such a policy as the basic liberties are constitutional secure, one of which is the right to bodily autonomy (and by extension the right to not be murdered).

How about protecting the political liberties? As it turns out, I believe this argument is the most compelling grounds for which we may actually disenfranchise an individual. However, this is restricted to political wrongdoers. Murderers having their political liberties makes no difference on other peoples ability to participate in politics-especially given that Rawlsian justice demands the securing of the fair value of the political liberties in the constitution. Those who commit political wrongs, however, such as election fraud, abuse of power… may only be incapacitated by, say, removing their right to hold public office (Zimmermann, 2019). This is a compelling argument; however, I still err caution, even in the case of political wrongdoers. While I fully endorse Zimmermann’s argument, I remain sceptical that any cases even of political wrongdoing will meet the bar set. This bar would still need to be shown to have been met in court.

Concluding Remarks

The aim of this article was to establish a set of persuasive conditions that can guide thinking on criminal disenfranchisement. I wanted to do this to ground existing intuitions that favour abolishing blanket criminal disenfranchisement. The conditions I formed, by definition, imply that criminal disenfranchisement is compatible with democratic values. However, any case of criminal disenfranchisement that does not meet the conditions is not compatible with democratic values. I have stated that the assumption should be that a criminal maintains their political rights unless it is proven that their restriction is justified. Equally, I have suggested that blanket criminal disenfranchisement is incompatible with democratic values. For most cases it has not been proven that they meet the conditions necessary to justify disenfranchisement and thus is both undemocratic and unjust. I cannot, nor do I believe that anybody has thus far, given a concrete example of a case that warrants disenfranchisement. Zimmermann provides a focused framework which may yield such an example however, until that is provided, I remain sceptical that any criminal case will meet the conditions laid out in this paper, and thus remain sceptical that any criminal would ever be justifiably disenfranchised

Bibliography

Donnelly, S. (1990) “The Goals of Criminal Punishment: A Rawlsian Theory”. Syracuse Law Review.41(2).741–800.

Hirst v. UK (№2). (2005). ECHR

Lopez-Guerra, C. (2014). Democracy and Disenfranchisement: The Morality of Electoral Exclusions. Oxford: Oxford University Press

Poama, A & Theuns, T. (2019) “Making Offenders Vote: Democratic Expressivism and Compulsory Criminal Voting”. The American Political Science Review. 111 (3). 796–809

Rawls, J. (1955) “Two Concepts of Rules”. The Philosophical Review. 64 (1).

Rawls, J. (1971) A Theory of Justice. Cambridge: Harvard University Press

Rawls, J. (1993) Political Liberalism. New York: Columbia University Press

Rawls, J. (2001) Justice as Fairness: A Restatement. Cambridge: Harvard University Press

Siegal, J. (2011). “Felon Disenfranchisement and the Fight for Universal Suffrage”. Social Work. 56 (1). 89–91

Zimmermann, A, (2019) “Criminal Disenfranchisement and the Concept of Political Wrongdoing”. Philosophy and Public Affairs. 47 (4). 378–411