Punishment, Idealizations, and Non-ideal Theory
In the United States, it is common for state governments to restrict the political rights of criminal offenders. 1 According to the most recent available estimates, more than 6 million US citizens are disqualified from voting because of a current or past criminal conviction. 2 Only Maine and Vermont do not suspend offenders’ voting rights. Throughout the rest of the country, felons, and sometimes misdemeanants, cannot participate in elections during any term of incarceration. 3 Depending on their state of residence, many of these ineligible voters will regain the franchise after completing prison or jail sentences; others are prohibited from voting until they have completed additional years of probation or parole. Ex-felons residing in Florida, Iowa, and Kentucky are regularly denied access to the ballot box for life. Several states with the harshest criminal disenfranchisement policies disqualify more than 5% of their adult citizens; Florida disenfranchises more than 10%. 4 In contrast, nearly every other liberal democratic nation guarantees voting rights for ex-convicts, and most allow (or even encourage) inmates to vote.
In this essay, I argue that limiting offenders’ political rights is seriously unjust in societies as they are and are likely to be. Given the widespread use of this punishment in the United States, this is an important result. However, by identifying problematic assumptions common in philosophical and popular discussions of punishment , the central argument I offer against criminal disenfranchisement has broader philosophical implications, as well. To set the stage for this broader argument, the following remarks will be helpful.
According to John Rawls , criminal punishment is automatically beyond the scope of ideal theory —since punishment arises only because people sometimes fail to act justly, theory of punishment belongs to non-ideal, partial compliance theory. 5 Despite this, philosophical discussions of punishment in the analytic tradition are often highly idealized. Consider the challenge that has dominated penal theory. Punishment generally involves treating convicted offenders in ways that are prima facie objectionable: we forcibly confine offenders, take their money and property, suspend their rights, deny them easy access to loved ones, and cause various other forms of suffering. Given the prima facie injustice of such treatment, we require an account of why, when imposed as punishment, it is just. It is generally accepted that an appropriate justification, if there is one, will point to facts about what punishment is ideally for—to some ideal purpose or aim of punishment in generally just societies. If this idealized aim is itself just, and if the types of losses that we impose as punishments would be acceptable ways of pursuing that aim, most penal theorists would take the philosophical challenge to have been met.
Some philosophers are dissatisfied with this idealized discourse, urging that widespread social injustice might make ideal justifications of punishment inapplicable to more realistic societies. 6 Yet even many of these theorists pay insufficient attention to some of the most pressing concerns about contemporary American criminal justice—such as the significant racial disparities that are characteristic of the American penal system, or the various forms of injustice related to American policing. It may be that philosophers see these questions as sociological or legal, rather than philosophical; however, I believe that important philosophical and normative issues are likely to be missed if we pay inadequate attention to such concerns.
Penal theory falls out of the important question raised by non-compliance: What is a community to do about the fact that people sometimes act unjustly toward one another? What, for instance, is to be done about interpersonal violence? These are important questions, but they are easily interpreted too narrowly. It is easy to conceptualize punishment (or the threat thereof) as a natural or automatic response to the problem of non-compliance—in which case the central questions are about whether this natural response is the right response, or whether it adequately satisfies the relevant societal needs.
This is not the only possible understanding of punishment. Angela Davis ’s arguments for prison abolitionism rest on the view that contemporary American penal institutions and practices are best understood in terms of a prison industrial complex. 7 As Davis points out, this understanding requires “that punishment has to be conceptually severed from its seemingly indissoluble link with crime.” 8 Instead, Davis theorizes about practices and institutions of punishment as “linked to the agendas of politicians, the profit drive of corporations, and media representations of crime [in conjunction with] the racialization of those most likely to be punished.” 9
As Davis’s view illustrates, keeping in mind the gross injustices within the American penal system makes it easier to notice that there are other ways to understand the relationship between punishment and the important question of non-compliance. In particular, it becomes clearer that penal practices sometimes constitute or create the very injustices to which society must respond.
There is a pressing need within the philosophy of punishment for greater exploration of views, like Davis’s, that do not start with the assumption that punishment exists primarily as a necessary response to injustice. Moreover, less idealized theorizing might serve as a corrective to distortions commonly introduced into philosophical and folk debates about punishment. 10 In doing so, it presents an alternative understanding of the important question raised by non-compliance. Consider, for example, that while partial compliance theory is predicated on the assumption that agents sometimes fail to act justly, debates about the justification of punishment regularly presuppose that the bad actors are those being punished, rather than those doing the punishing. Such presuppositions make it easy to forget or ignore that regarding the question of what counts as an offense, different standards are frequently imposed for different segments of the population. Such distortions make it easy to forget that many people have been and will be marked as criminals for refusing to mind their place. A more thoroughgoing non-ideal penal theory might instead start from the important truth that punishment is a political institution that often creates, reinforces, and replicates injustice—an institution that has regularly and widely been used as a tool of dominance and oppression. 11 In this way, such non-ideal theorizing supplements the dominant understanding of the question of how we, as an actual society, should respond to the fact of injustice.
This chapter uses the example of criminal disenfranchisement to demonstrate that non-ideal starting points can generate new insights into questions of penal justice in the real world—insights likely to be missed if we operate only within more idealized frameworks. The following section, “Criminal Disenfranchisement and Criminal Injustice” presents the main argument against restricting offenders’ political rights. This argument begins with the well-documented racial and ethnic disparities in who is subjected to this punishment in the United States, and uses these disparities to tease out a deeper, more general challenge to this form of punishment. The sections entitled “Deterrence and Rehabilitation” and “Retributivism” tie the general argument to the more familiar philosophical discourse on punishment by drawing connections between this argument and the values that more idealized views use to justify punishment. Generally speaking, even idealized views have not been friendly to criminal disenfranchisement as a form of punishment. However, the arguments of these two sections go beyond the standard dialectic by showing how this dialectic, which incorporates problematic idealized assumptions, misses important ways that our penal practices and institutions might actively undermine punishment ’s apparent justificatory values. The final section briefly explores possible extensions of the main line of argument, and responds to a potential objection arising out of these extensions.
Criminal Disenfranchisement and Criminal Injustice
Social scientists frequently note that racial and ethnic minorities (primarily black men) are significantly more likely than white citizens to lose democratic rights through penal disenfranchisement . 12 Nine states disenfranchise more than 10% of their adult African American citizens, all at far higher rates than they disenfranchise non-African Americans (see Table 1). According to the most recent available estimates, more than 20% of African American adults in Florida, Kentucky, Tennessee, and Virginia are ineligible to vote due to state disenfranchisement policies. 13 Nationally, black citizens lose their civil rights at more than four times the rate of non-black citizens. 14
Table 1
Estimated disenfranchisement rates for African Americans and non-African Americans in select US states
Non-African American disenfranchisement rate (%) | African American disenfranchisement rate (%) | |
|---|---|---|
Nevada | 3.3 | 11.8 |
Arizona | 3.9 | 11.9 |
Alabama | 5.1 | 15.1 |
Mississippi | 6.2 | 15.9 |
Wyoming | 5.2 | 17.2 |
Tennessee | 5.8 | 21.3 |
Florida | 8.6 | 21.3 |
Virginia... |