punishment and inclusion: race, membership, and limits of american liberalism

Fordham University Press (2014)

With remarkable regularity, felon disenfranchisement—“the restriction of voting rights for individuals convicted of certain criminal offenses—is analyzed and denounced by political theorists and philosophers. The practice, they rightly observe, is at odds with basic principles of liberal proportionality, republican conceptions of civic education, and any accepted penological ends. And yet, it persists throughout the United States, continuing to shape the outcome of political contests, and asserting itself each and every time Americans line up at the voting booth. What larger lessons does the fact of felon disenfranchisement’s persistence teach us about American law, politics, and principles?

Punishment and Inclusion argues that the particular history of felon disenfranchisement, rooted in post-slavery restrictions on suffrage and the contemporaneous emergence of the modern American penal system, shows the deep connections between two American political institutions often thought to be separate, revealing the work of membership done quietly by our criminal justice system, and, conversely, the work of punishment done by the electoral franchise. By treating disenfranchisement as a symptomatic marker of the deep tension and interdependence that persists in democratic politics between who is considered a member of the polity and how that polity punishes persons who violate its laws, Punishment and Inclusion opens new critical perspectives on the philosophy of punishment, the institution of American citizenship, and the internal limits of liberal political theory. In doing so, it goes beyond existing scholarly accounts of disenfranchisement that primarily focus either on the question of its efficacy as a form of punishment, or on the question of the legitimacy of its restrictions on the franchise, without considering the relation between these issues, which is where felon disenfranchisement’s deepest significance lies.

This account of disenfranchisement tells the larger story of how legal techniques, punitive practices, and political discourses have been routinely deployed to manage an internal tension in liberalism by displacing that tension onto the bodies of criminalized others. Disenfranchisement does its productive work by fabricating the figures of the innocent citizen and the dangerous felon, attempting to alleviate the broader anxieties of living in a social world where harm at our own hands or those of another is a constant possibility. Since liberal theories of justice rely on such displacements, I call for a broader rethinking of the meaning justice itself and the normative frameworks we use to judge our penal practices that is sensitive to the contingency of one’s political and legal standing, the production and fabrication of criminal kinds, and the social, political, and epistemological work done by the very practices we seek to adjudicate.

By consciously focusing on a relationship between theory and practice, the book works simultaneously in theoretical, historical, and empirical registers. As such, it draws on a wide range of resources, ranging from the rich documentary record of Maryland’s several constitutional conventions during the 19th and 20th centuries to the theoretically informed historical account of American citizenship developed in the legal philosophy of Judith Shklar (as well as some aspects of the history of American debates over the franchise that Shklar ignores), to the work of John Locke, Michel Foucault, Ida B. Wells, Frederick Douglass, W.E.B. DuBois, and Iris Marion Young, each of whom contributes in different ways to my own account of the relationship between citizenship and punishment. Similarly, it employs a range of interpretive and critical methods, including close reading of philosophical and popular texts, original archival research, legal analysis, and discursive genealogy.

“Punishment and Inclusion: Race, Membership, and the Limits of American Liberalism is a powerful, remarkable book. It insightfully explores the nexus of punishment, disenfranchisement, and racism in the United States. Dilts calls on all of us to rethink our longstanding practice of felony disenfranchisement. His argument is subtle and thoroughly convincing. Written in an engaging and lucid style, it is truly a pleasure to read this book.” — Austin Sarat, Amherst College

“This book pulls from many different disciplines, perspectives, and sources to construct a compelling argument about the status of American democracy today. It applies theoretical sophistication to these sources while maintaining a strong political commitment. This is a combination that is all too rare in the field of political and legal theory today! — Keally McBride, University of San Francisco

“…because this study is so theoretically rich, practically engaged, and filled with critical insight, it invites a host of follow-up questions, suggestive for future research growing out of this work.” — Leonard C. Feldman (Law, Culture, and the Humanities)

“In the United States today, approximately 5.8 million people have lost the right to vote due to a felony conviction. The disenfranchisement rate, like the incarceration rate, is starkly racialized: 1 in 13 African Americans are excluded from voting, compared to 1 in 56 Americans of other races. Punishment and Inclusion is a must-read for anyone who wants to understand how this situation came to be, and how the practice of felon disenfranchisement (re)produces extreme racial inequality through a colorblind criminal legal system. —Lisa Guenther (Theory & Event)