dissertation
Excess Punishment: State, Citizens, and Felon Disenfranchisement
Andrew T. Dilts
Abstract
This dissertation is a study in political theory analyzing the discourses of punishment and citizenship through an exploration of voting rights restrictions faced by those convicted of criminal offences in the United States. As has been documented in the voluminous literature on criminal justice in the US, as well as in the emerging empirical and normative literature about felon disenfranchisement, such voting rights restrictions date back to the foundational documents of the American experience, and continue to reflect a relatively unacknowledged tension in the boundaries of political membership in the United States. Understanding felon disenfranchisement as a practice requires a broad analysis of American discourses of citizenship and punishment, the structure of action and identity, and, ultimately, the background social and political conditions supporting the American liberal tradition. It is a practice that exposes a deep and troubling connection between who constitutes the demos, and who is punished and excluded by it.
In this dissertation, rather than evaluate felon disenfranchisement normatively, I ask what we can learn about the foundational principles of American politics from the fact that we do engage in a practice that appears to be a prima facie contradiction of liberal principles of proportionality. This dissertation argues that disenfranchisement, as it has been practiced in the United States, produces state authority, the innocent citizen, and the felon in an attempt to alleviate the anxiety of living in a social world where harm at our own hands or those of another is a constant possibility.
Chapter One demonstrates liberal punishment theory’s inability to deal with practices defined through their additive and excessive character, such as disenfranchisement. The central shortcoming of both the punishment and citizenship literatures is a failing to account for their deep connections, thus missing both the real world and theoretical effects of this relationship. This manifests itself in the general inability of normative theorists of punishment to account for the persistence of seemingly illiberal practices such as disenfranchisement.
Chapter Two uses Michel Foucault’s work on the criminological figures of the delinquent and homo œconomicus to re-interpret the productive work practices like disenfranchisement perform, showing how the felon is “fabricated” by practices of punishment and citizenship. This analysis is complicated, however, by Foucault’s shift in thought from disciplinary mechanisms of power to techniques of governance that characterize 20th century neo-liberalism.
Chapter Three offers a novel reading of John Locke’s Second Treatise of Civil Government, highlighting the kind of problem that punishment and proportionality poses for the state and its subjects. Understanding Locke’s justification for the killing of thieves in the state of nature is exemplary of the difficulty of punishing within limits. The generation of a meaningful language of proportionality, itself an attempt to cope with anxiety about past and future harm, requires the production of a criminal “other” in the foundation and maintenance of civil society. This is a problem that Locke seemed grasp, but which contemporary theorists seem to ignore or disavow.
Chapter Four turns to the relationship between suffrage, slavery, and punishment in the United States through a sympathetic reading of Judith Shklar’s theory of citizenship as public standing. While her analysis of standing and exclusion in American democracy is invaluable, she neglects the social construction of the citizen as white and innocent through the long history of criminal disenfranchisement. The perverse outcome is that the act of voting becomes an expression of innocence purchased on the backs of felons.
Chapter Five closes the dissertation with a history of disenfranchisement as it has evolved in the state of Maryland. A rich documentary record of the state’s several constitutional conventions provides an opportunity to explore the role of disenfranchisement provisions in foundational and governing documents. This final chapter grounds the dissertation in an exemplary history of the practice of felon disenfranchisement, demonstrating the meaning and work of felon disenfranchisement and revealing the historically interconnected discourses of punishment and citizenship.