'Civil Death’: The Ideological Paradox of Criminal Disenfranchisement Law in the United States

Abstract

This Article holds that the most powerful critique of criminal disenfranchisement begins by appreciating the policy’s deep roots in American political ideology. First, the Article argues that only a combination of contractarian liberal, civic-virtue republican, and racially discriminatory ideologies explains the persistence of criminal disenfranchisement in the United States. Second, the Article shows that while liberal and republican ideas about self-government have long provided solid foundations for criminal disenfranchisement in American political thought, the goals and principles of both ideologies also undergoes powerful challenges to the practice. At the heart of this argument lies a paradox: although all three ideological traditions have contributed to the development of criminal disenfranchisement law in the United States, the modern commitments of both liberalism and republicanism should lead Americans to abandon the practice. By analyzing the liberal, republican, and racially discriminatory approaches to criminal disenfranchisement, the article attempts to explain both the durability and the incoherence of the policy. The article finds indefinite disenfranchisement — also called “ex-offender,” “ex-felon,” or permanent disenfranchisement — to be the most egregious form of the practice, as it imposes on criminal offenders something akin to the medieval condition of “civil death.” But to a greater degree than many authors have recognized, temporary and indefinite disenfranchisement policies rest on fundamentally similar premises, and are equally vulnerable to principled challenge.