Abstract
The stripping of voting rights for felons and ex-felons in the twenty-first century is the entry point for Punishment and Inclusion, Andrew Dilts’ ambitious and powerful reframing of Anglo-American liberalism as constituted by practices of punishment. While recent reform efforts in various U.S. states have eliminated some of the most punitive, permanent vote stripping provisions, Dilts pushes his readers to avoid jumping to comfortable conclusions about the capacity of liberal punishment to easily shed its excesses. Punishment and citizenship, criminal law and voting law: in the twenty-first century American polity we might wish to believe there is only a contingent relationship between the two terms in each pair and that certain reform efforts might quickly succeed in disentangling them completely. Dilts urges us to revise that view by arguing, through a kind of genealogy of American liberalism, that the practices of state punishment (including, paradigmatically, the punishment of disenfranchisement for current and former felons) are constitutive of membership.
The central theoretical voices in the analysis are Foucault and Locke: the former provides the conceptual and methodological resources for illuminating the productive, generative power of criminological discourses in producing the subject positions of felon and citizen; the latter serves as a kind of exemplary case study and foundational moment for the argument that punishment is not something that an already constituted polity happens to do to certain of its members who violate the rules. In Dilts’ pathbreaking reinterpretation of Locke, it is through “the act of punishing” that “the boundary between the member and the criminal” is drawn and the subject position of criminal is established (104). At the deepest level, Dilts shows how it is through the practice of punishment, its failures, successes, and excesses, that Locke produces civil society.
Dilts then brings the theoretical insights gleaned from these engagements to bear upon felon disenfranchisement in the United States. But this is no mechanical application of theory to an empirical case. Rather, Dilts argues passionately and persuasively that felon disenfranchisement is a deeply racialized practice, a key part of the project of white supremacy. Through a nuanced and critical engagement with the work of Judith Shklar, Dilts focuses on the convict-lease system in the post-Reconstruction south to show how racialized punishment (often obscured by a race-blind legal veneer) was constitutive of whiteness as citizenship. The link between racialized punishment and the constitution of the citizenry becomes most clear in the case of disenfranchisement as punishment in an era of mass incarceration. Dilts argues that voting functions as a kind of identity-performance, the content of which depends on the exclusions that structure the franchise. Race-based exclusions create a performance of whiteness. Similarly, Dilts notes, when you vote today under some procedure of felon disenfranchisement you are performing your innocence, whether you know it or not.
This book contributes significantly to the discussion of the relationship between neoliberalism and white supremacy. Dilts shows how neoliberalism has influenced penal practice in general and felon disenfranchisement in particular. In the pre-neoliberal era, the criminal as a figure in the eighteenth and nineteenth centuries was “pathological, deviant, and abnormal” (59). By the late twentieth century the criminal is refigured as a responsible individual, pathologized less by virtue of deep character flaws and more as a maker of bad choices. Dilts shows this shift in a richly-detailed two-chapter case study of arguments over disenfranchisement provisions in the Maryland state constitutional convention debates of 1851, 1864, and 1967. In the nineteenth-century debates, disenfranchisement was explicitly acknowledged as a punishment, linked to the claim of deep character defects that rendered some undeserving of citizenship. Dilts argues that the figure of the “free Negro” hovered in the background of these debates and that the disenfranchisement provisions “stabiliz[ed] whiteness as the political norm, and us[ed] suffrage as a technique to police those persons who failed to adhere to the norm” (198). In the contemporary period, by contrast, disenfranchisement is superficially delinked from punishment and the constitutive work of boundary-drawing, becoming a technical part of electoral law. The legal status of felon and its attendant excess punishments are no longer explicitly avowed and justified by the state on the basis of asserted character defects. Neoliberal penality still manages to demonize criminals through the back door of an apparently respectful language of responsibility and choice. “Felon” and the practices of felon disenfranchisement that persist to this day “work in the dark” (169) to construct citizenship as white.
Dilts’ deployment of Foucault’s discussion of the neoliberal thought of Gary Becker is skillful and illuminating. But Dilts’ argument might have been further strengthened by supplementing his discussion of Foucault on the neoliberalization of penality with an investigation less tethered to Foucault on the neoliberalization of the polity and its role in the politics of felon disenfranchisement. Dilts shows how political membership and punishment have become at least superficially delinked in the contemporary era. Here I wonder if this apparent uncoupling of punishment and membership is in part a reflection of the waning significance of political membership itself as neoliberalism recalibrates the relationship between political and economic rationalities.
That is to say, the nineteenth century’s avowal of disenfranchisement as punishment was a reflection not only of the supposed monstrosity of some criminals but also a reflection of the symbolic importance of political subjectivity. Neoliberalism may be thought of as itself a project of disenfranchisement, one that may make “the vote” a less potent symbol of membership. Relatedly, I wonder if, in the context of our current neoliberal order, the most powerful (and harmful) exclusion of ex-felons occurs in the employment market where prospective employers routinely ask applicants if they have ever been convicted of a felony, and where a felony conviction functions frequently as a barrier to employment. This is an issue that Dilts discusses briefly but does not focus upon. Not only does employment discrimination against ex-offenders have more immediate material effects on the lives of ex-felons than voting disenfranchisement, but it also does significant discursive and cultural work in marking the boundaries of civil society. Furthermore the jurisprudence in this area is complex and would greatly benefit from critical analysis using the conceptual tools provided by Dilts.
Finally, 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. Felon disenfranchisement is a comparatively varied phenomenon. Unlike the related issues of mass incarceration and the death penalty (where the U.S. appears as quite strikingly exceptional), on the issue of felon disenfranchisement the U.S. while appearing at the more punitive end, has more company. The comparative study of felon disenfranchisement policies would greatly benefit from engaging the arguments of this important book.