Felon Disenfranchisement and the Argument from Democratic Self-Determination

Felon disenfranchisement is a contested practice that is often met with suspicion by philosophers and legal theorists. While some have claimed that denying felons the right to vote is always an unjust form of punishment (e.g., Cholbi 2002), others have argued that although this practice can be justified in principle, it should be more restricted than is currently evident in several countries, such as the United Kingdom and most U.S. states (e.g., Munn 2011; Bennett forthcoming).¹ One divergence from both of these common viewpoints, however, is presented by Andrew Altman (2005). According to Altman, felon disenfranchisement can be morally permissible because members of a legitimate democratic society have “a right to decide to disenfranchise persons duly convicted of serious felonies” (Altman 2005, 266). This right, or so Altman argues, exists because citizens of a legitimate democracy have a broad collective right to decide for themselves how to order their own affairs. That is, they have a collective right to democratic self-determination and to within certain limits define the identity of their political community.

Although this argument—which henceforth will be referred to as the argument from democratic self-determination—is held to show how policies can be permissible that are significantly broader in scope than many critics of existing disenfranchisement practices would allow, it has received little attention from philosophers and political theorists. One important exception, however, is Claudio López-Guerra, who raises several objections to the argument in his recent book on the morality of electoral exclusion (López-Guerra 2014). According to López-Guerra, each of his objections shows that the argument from democratic self-determination is problematic and should be rejected.

In this paper, I defend the argument from democratic self-determination against this recent critic, contending that the argument is stronger than López-Guerra recognizes and that each of his objections can be avoided. In responding to López-Guerra’s criticism, I show how and under what conditions it can be permissible for a democratic collective to disenfranchise felons. Furthermore, I propose that the disenfranchisement of felons should only be allowed if is not intended as a punishment; instead, it should be a way to express a view about the status of citizenship one endorsed as a democratic collective.

The paper proceeds as follows. In the next section, I present the argument from democratic self-determination in greater detail and explicate what I consider to be its important aspects (II). I then discuss López-Guerra objections to Altman’s view. I argue that none of them succeed in refuting the argument from democratic self-determination, although they help us to further explicate how and when it can be permissible for a democratic collective to disenfranchise felons through self-determination (III). I then assess the implications of my discussion in terms of offender reintegration (IV). The overall conclusion is summarized in the final section (V).

The argument from democratic self-determination starts from the recognition that citizens in a legitimate democratic state have a broad collective right to, within certain limits, decide their own affairs as they please (Altman 2005, 264). That is, within certain limits and without interference from others, they have the right and liberty to decide which political arrangements and policies should govern political life and public matters. In fact, there is wide diversity in democratic states’ policies concerning electoral systems, political representation, and the democratic system. As Altman (2005) points out, some states have a system of proportional representation, whereas others use a district-based first-past-the-post system. Insofar as there is a collective right to democratic self-determination, and thus for citizens to define the identity of their political community, it is not only reasonable to expect differences in political arrangement, but it is also important for these differences to be respected. According to Altman, this is true even if one electoral system is shown to be superior to any other as a matter of political morality. That is, democratic collectives’ right to define their political communities entails the right and liberty to establish and maintain an election system that may be considered less democratic from an ideal point of view. If a democratic collective had no choice but to adopt the most optimal system from a moral perspective, there would be no apparent reason to suppose or claim that democratic collectives have the liberty to decide for themselves how they should be governed (i.e., they would lack the right to self-determination). In a broad range of cases, it is also reasonable to expect that which system is the most “virtuous” will remain undetermined and that substantial and reasonable disagreement will occur between different parties (Altman 2005, 264).

According to Altman, the claim that citizens of a legitimate democracy have a collective right to define the identity of their political community has been neglected in discussions of felon disenfranchisement (2005, 264). Just as with electoral systems, different states have chosen diverse polices concerning whether criminals should be allowed or disallowed to vote. This does not mean that all practices or policies are permissible. As Altman rightly points out, and as I discuss below, the right to democratic self-determination is circumscribed in its nature (2005, 263). Furthermore, the range of policies and political arrangements regarding electoral procedures and (dis)enfranchisement that can permissibly be chosen is not unlimited. For this reason, it is important to be clear about when it can be permissible for a democratic collective to disenfranchise criminals. As Altman is also aware of, an argument that grounds a practice of disenfranchisement in the collective right to democratic self-determination runs the risk of saying that a democratic collective that chooses to disenfranchise those who commit serious offenses—as a way to define the identity of its political community—is doing nothing other than expressing a desire. In such a case, individuals would be deprived of the right to vote based on nothing but what may be seen as the mere desires of their fellow citizens (Altman 2005, 267). Therefore, we need to explicate when and why disenfranchisement is not arbitrary or ungrounded and when it falls within the domain of a democracy’s collective right to democratic self-determination.

Here, I wish to offer some remarks and clarifications. First, as I understand the argument from democratic self-determination, it intends to show that it can be permissible for political collectives to choose to disenfranchise criminal offenders (although they do not have to). However, the claim about the non-arbitrariness of felon disenfranchisement as it relates to the permissibility of adopting such a practice needs to be specified. In one common understanding of permissibility, an action is permissible if there are no clear or strong moral reasons that speak against performing it. Applied to the case at hand, this would suggest that while there are strong reasons against disenfranchisement based on sex, race, or religion, there are no such reasons in the case of felon disenfranchisement. Still, we cannot merely assume that there is a lack of reasons that would contradict the disenfranchisement of felons. Nor is it sufficient to say that felon disenfranchisement is permissible because criminal offenders have forfeited or lost the right not to be disenfranchised. This would imply that felon disenfranchisement is permissible not because democratic collectives have the right to disenfranchise criminal offenders but rather because criminal offenders have already forfeited the right that would otherwise hinder democratic collectives from adopting felon disenfranchisement.² An alternative proposal is that what makes it permissible for a democratic collective to decide whether to disenfranchise felons is the existence of a positive reason that justifies and explains why democratic collectives should be free to decide how they wish to respond to serious crimes. I consider this to be in line with Altman’s claim, where it is the violation of important normative constraints that is held to provide a justificatory reason of this sort. This is so because these normative constraints have political significance, whereas sex, race, or religion does not.

This leads to a second issue, namely what qualifies as an important normative constraint in the above sense. Although Altman does not explicitly discuss constraints in terms of morality, he does suggest that the nature of such constraints can be spelled out using different normative categories, such as utility. In my view, it is reasonable to think that whether a normative constraint is important must, at least in part, be informed by an ethical framework (such as the acceptance of universal human rights, a libertarian theory of natural rights, or utilitarianism). At a minimum, there appears to be an important connection between morality and the sort of normative constraints that Altman explicates as considerations that can render felon disenfranchisement legitimate. One complication, of course, is that not all legal constraints are justified in virtue of constraining and prohibiting immoral behavior. The criminalization of minor drug-related offenses, for instance, is hard to justify beyond mere paternalistic reasoning.³ Furthermore, such examples do not (or at least do not obviously) violate important normative constraints and would therefore not qualify as grounds for disenfranchisement in the sense advocated by Altman. The same appears to be true of many crimes in which the wrongness is merely illegality and does not correspond with any moral standard (mala prohibita). This is not necessarily a problem for Altman, as he could stress that his account is limited only to crimes that amount to a violation of a moral standard (mala in se). Moreover, to maintain that at least some crimes have political significance, the harm involved should also be of such a kind that it is reasonable to say that it is a concern not only to the victim but also to the society as a whole. Although Altman might disagree, I think that plausible candidates are crimes that violate (or threaten to violate) rights that are fundamental to a free and democratic society and that individuals need to assure security and the prospect of leading decent lives informed by autonomous choices. These involve the right to life, freedom, autonomy, and to some extent, property. I would argue that it is reasonable to say that democratic systems often build upon and are governed by these rights. Moreover, these rights are held to be safeguarded by the same system.⁴ In addition, crimes that are directly related to the democratic process, such as electoral fraud, are among the criminal wrongs for which it should be permissible for a democratic collective to adopt disenfranchisement policies.⁵

Altman holds that although disenfranchisement is not necessarily punitive, its length must be tied to the principle of proportionality. He argues that disenfranchisement may justifiably be extended through the period of court supervision, but at the same time, the duration of both imprisonment and loss of voting rights must be proportional to the seriousness of the normative violation. Otherwise, this would create an inconsistency within the system (Altman 2005, 269). For this reason, the revocation of the right to vote for life would be disproportionate for crimes that do not result in lifetime imprisonment. Although this is an issue that must be worked out in greater detail, I think that a reasonable starting point is that the period for which one should have the right to vote suspended should be governed by the length of imprisonment (or other means of depriving freedom) for which one is liable.

The argument from democratic self-determination, if correct, not only provides a possible explanation for how and why certain disenfranchisement laws can be permissible but could also go the other way around. Exercising the collective right to democratic self-determination could entail the view that “we wish to abolish this practice because even though we believe serious crimes need serious responses, we also believe that every adult person has a right to vote.” As such, it is part of the political identity of, say, Norway, that the Norwegian political community allows all prisoners to vote, which is a decision that ultimately should be respected.

To summarize, the argument from democratic self-determination may, at least in theory, support a broad range possible disenfranchisement policies insofar as it is restricted to serious crimes that violate rights that are crucial to ensure that individuals lead secure lives in accordance with autonomous choices. As I explicate above, these are rights that democratic systems are governed by, while these rights at the same time are safeguarded by the same system. It should be noted, however, that this argument does not imply that disenfranchisement policies are morally desirable from an ideal point of view. The argument is merely that they can be legitimate despite this insofar as they are the result of democratic self-determination under the conditions outlined above.⁸ That being said, the argument from democratic self-determination has not been free from criticism. In the following, I discuss some objections to it that have recently been raised by López-Guerra (2014).

I argue that none of these objections successfully dismisses the argument from democratic self-determination.

Before I proceed, it should be noted that the discussion below considers whether disenfranchising felons is acceptable in theory. This does not rule out the fact that there may be practical arguments against it. For instance, while López-Guerra (2014) holds that there are no good theoretical arguments in defense of felon disenfranchisement he provides a practical argument against prisoners’ right to vote, as he contends that voting from prison should not be allowed or facilitated in social contexts where it cannot be expected that the process will be free and fair. According to López-Guerra, this is also the case in many representative systems around the world, although not everywhere.

López-Guerra further argues that it is hard to maintain that disenfranchisement based on sex or race is non-arbitrary. To the contrary, he points out that if there is any perspective that is not arbitrary, it is that of identity (2014, 117).

It is hard to disagree with López-Guerra on the point that when appealing to identity, we are often excluding others based on mere differences. Yet, I am not convinced that this is something a defendant of the argument from self-determination must deny. Instead, López-Guerra appears to have misrepresented one important point of the argument. As I discussed in the previous section, disenfranchisement based on sex or race is indeed arbitrary and would merely be an expression of preferences. However, what makes exclusion based on gender or race arbitrary in this view is that these features lack a reasonable connection to a relevant normative consideration of political significance. It is only when there is normative consideration of this type that it can be permissible for the members of a legitimate democracy to collectively choose to disenfranchise to express a certain political identity. Note, however, that it is not the mere status of being a felon that is of political significance. What is important is that at least a set of criminal offenders, by virtue of having violated certain important normative constraints, have done something that is an appropriate concern not only for the victim but also for the political collective as a whole. As I explicated above, this set will most adequately include offenders whose actions involve violations of rights that are fundamental to a free and democratic society; without these rights, individuals cannot lead secure and autonomous lives (see section II). I would contend that it is reasonable for members of a legitimate democracy to collectively decide whether they find that a person who freely violates shared values in their democratic society should take part in shared decision making that both ensures and is safeguarded and governed by the same values. Insofar as an offender has violated an important normative constraint of this sort, it is also reasonable for a democratic community to have a say in how one should respond to the wrongdoer and to decide whether violations of these rights are compatible with full citizenship. Most importantly, answering this question negatively hardly qualifies as an arbitrary or ungrounded decision, at least not in the same sense as disenfranchisement based on gender or race does.

López-Guerra’s second objection to the argument from self-determination focuses on Altman’s claim that the choice to disenfranchise serious criminal offenders is legitimate only if there are good justifying reasons to do so (i.e., not mere preferences). According to López-Guerra (2014), there is a serious problem with this argument, since “Altman never tells us what those reasons are other than the circular appeal to the right to define an identity” (117). In raising this objection, López-Guerra adds the further criticism that Altman “assumes without argument that the interest of the community in its identity is greater than the interest of felons in the franchise, and he does not provide any clues as to how one might go about trying to advance that argument” (117).

In responding to these objections, we first need to carefully distinguish between the two different notions of “justifying reasons” that are at work in the argument from democratic self-determination. On the one hand, there is the overall justificatory reason, which explains why it is permissible for a democratic collective to adopt a policy on criminal disenfranchisement—namely that democratic collectives have a right to define their political identity within certain limits. On the other, there is the notion of justificatory reason(s) in the sense of reasons that can justifiably be adduced in the self-definition of a collective. This latter reason(s) is not to be conflated with the former. However, this appears to be what López-Guerra does in raising his second objection. When saying that disenfranchisement is legitimate only if there are justifying reasons, what is meant is not the collective’s right to define their political identity, but rather that there must be reasons that can be justifiably adduced in doing so. As I have pointed out, the reason is that some serious criminal wrongdoing amounts to a violation of the sort of normative considerations of political significance I explicated above. Seen in this way, the argument is not circular.

Thus, that the reason adduced by a democratic collective in a decision to disenfranchise felons must amount to considerations of political significance. This also helps in providing an answer to López-Guerra’s critical claim that in Altman, defense of the argument, assumes that the interest of the community in its identity is greater than the interest of felons in the franchise without establishing this view. As I have pointed out, it is not a mere interest in defining political identity that is of sole importance; rather, how one should respond to violations of important normative constraints should also be considered. Such constraints have political significance, as they protect rights that are fundamental to a free and democratic society; thus, they are crucial to ensure that individuals can lead secure and autonomous lives. Contrary to López-Guerra’s objection, a collective’s interest in deciding whether freely violating these rights is compatible with full citizenship is not a weak interest; instead, it is arguably a strong one that concern how to affirm core values in liberal democracy. What is more, this interest is not necessarily something that must stand in conflict with criminals’ interest in voting. Serious criminal offenders are, at least ex ante, part of the collective that has the interest in deciding how to respond to important normative constraints that have strong political significance. Note that this is not a factual claim about criminal wrongdoers’ psychology, as it would be wrong to say that all serious criminal wrongdoers lack an interest in voting. However, what is important to recognize is that insofar as there is such a thing as a collective interest in being able to express a certain political identity, then this is an interest which felons-to-be, at least in an ideal case, share in virtue of being members of the same democratic community.

The importance of allowing public opinion to influence criminal justice policy, at least partly, can be further motivated in that it can increase public confidence in the criminal justice system and a gain in credibility and/or democratic control and influence.⁹ Thus, a tentative argument could be made (or at least developed) that in relation to questions concerning criminal justice, democratic collectives as a whole ought to have the right to decide for themselves how they would choose to be governed, which to a certain extent includes the sort of reaction to serious criminal wrongdoings they find appropriate. Here, I am not suggesting that any public influence on criminal justice policy by necessity increases credibility or public confidence, or that allowing the public to have a say in criminal justice is without problems. Too much public influence could also be counterproductive, as it may lead to penal populism. This is certainly unwarranted, especially as it may result in overly harsh punishment that cannot be justified. What I am suggesting is that democratic collectives’ interests in being able to define their own political identities perhaps could be further motivated in the light of these concerns. If so, there is also a tentative reason that the collective should be free to decide whether felons should be allowed to vote. This is perfectly consistent with the claim that the public chooses to let felons retain the right to vote, perceiving disenfranchisement to be unjust or for other reasons problematic. If that is the case, disenfranchisement would be counterproductive and perhaps even undermine the credibility of and public confidence in the criminal justice system. The important point, however, is that in both cases, public influence is important and relative to the particular collective in question.

López-Guerra’s (2014) third objection to the argument from democratic self-determination is that it rests on the dubious premise that “whatever identity a community might want to assert by disenfranchising felons cannot be asserted except by disenfranchising felons” (117). If there were other ways for a democratic collective to assert such a political identity, López-Guerra argues, felons should be allowed to vote. This is especially true because it is arguable that the right to vote is important to many felons. In making this argument, López-Guerra emphasizes Altman’s claim that citizens’ collective decision concerning how to respond to the violation of important normative constraints can be interpreted in one of at least two ways: Either it denotes the means one endorses, or it denotes an attitudinal response. In response, López-Guerra claims that if Altman intends that a “response” denotes the means one endorses, this would certainly be a weak interest which hardly overrides felons’ interest in the right to vote.¹⁰ Yet, if it is a matter of expressing a particular attitudinal response, López-Guerra holds that Altman has failed to explain what identity it is that the disenfranchisement of felons asserts and that it cannot be asserted by other institutional means. López-Guerra contends that this is the most serious of his objections.

I agree with López-Guerra that it is not merely the right to choose any means that is at stake if the argument from democratic self-determination is to be successful; rather, the question is whether felon disenfranchisement is warranted because of an important attitudinal response that cannot be expressed without it. It should also be noted that Altman occasionally presents his view in a way that makes López-Guerra’s criticism warranted. Altman writes, for instance, that the practice of disenfranchising felons can be a way for democratic collectives to communicate that they “will show […] respect for basic normative constraints on human behaviour, not only imprisoning those duly convicted of a serious felony, but also by suspending their right to vote for the duration of their imprisonment” (Altman 2005, 269). In this case, it is indeed questionable whether a democratic collective cannot show sufficient respect for basic normative constraints on human behavior without having to deprive those who violate these constraints of the right to vote. However, in response, it should be observed that it is possible to find identities and attitudes that a democratic collective may want to express but that cannot be expressed without felon disenfranchisement, for instance, “we, as a democratic collective, hold that those who are considered full member in our community, and therefore may participate in shared democratic decision-making, should equally restrain from violating the sort of normative constraints that protect rights and values which both underlie and are safeguarded by our democratic system.” I think that this is an attitudinal expression about the standards of citizenship that is indeed hard to account for without a disenfranchisement policy. Furthermore, I do not think that it amounts to a weak interest. In fact, it might be a strong one for reasons that I have explicated in reply to López-Guerra’s first and second objections.

In response, one could perhaps reformulate López-Guerra’s objection in the following way: Although legitimate, the proper scope of the democratic collective’s interest in democratic self-determination, and thus in being able to define its identity, partly depends on the countervailing interest serious criminal wrongdoers have in voting. The question, then, is whether the interest in self-determination can be realized without disenfranchising felons. If so, there seems to be no reason for allowing felon disenfranchisement. Now, whether this is a more convincing way of formulating the argument in part depends on what counts as sufficiently realizing the interest in democratic self-determination. To be sure, it is true that a democratic collective can satisfy this interest, at least to a certain degree, without disenfranchising felons. Yet, the relevant question here does not seem to be whether a collective’s general interest in self-determination can be sufficiently realized, but whether a particular identity—such as that inherent to the attitudinal response described above—can be asserted without felon disenfranchisement. Moreover, one can perhaps also stress (as I have done in response to López-Guerra’s second objection) that the collective interest is not necessarily something that must be countervailing to serious criminal wrongdoers’ interest in voting. It is indeed arguable that these wrongdoers, at least ex ante, are included in the collective that has this interest in the first place. Therefore, if disenfranchisement based on felony can be a legitimate part of how of the democratic community defines its identity, then this is an interest that felons-to-be also share, or at least ideally so, in virtue of being members of the same community.¹¹

Although it is not fully sufficient to refute the argument from democratic self-determination, I believe that López-Guerra’s third objection highlights a possible limitation of the argument. If a political collective, for instance, adopts disenfranchisement as part of saying that “we see ourselves as a punitive collective that deliberately chooses to punish those who violate important normative constraints not only by depriving them their freedom of movement and their liberty but also by barring them from voting,” it is indeed reasonable to question whether disenfranchisement is necessary to express a punitive attitude or whether any of the common rationales (deterrence, incapacitation, reform, or retribution) for punishing criminal offenders cannot be fulfilled without disenfranchisement.¹² The argument from democratic self-determination is valid insofar as the endorsement of disenfranchisement laws is made on non-punitive grounds. However, as Altman stresses, the argument does not presuppose that disenfranchisement is a punishment. Rather, we can think of disenfranchisement as “a statement about the standards to which the state will hold each citizen if she is to retain her claim to be a full and equal member of the political community” (Altman 2005, 265). In other words, disenfranchisement should not be seen as a punishment (i.e., a condemnatory burden or deprivation imposed for a criminal offense); rather, it should be viewed as a civil disqualification due to having violated an important normative constraint of the sort I discussed in reply to López-Guerra’s first objection (see also section II). In light of López-Guerra’s third objection, then, the argument from democratic self-determination is valid only insofar as disenfranchisement is a form of civil disqualification.

One obvious response to this is to question how to determine that a civil disqualification is not a form of punishment. Indeed, in some jurisdictions, it is not treated as such. For instance, in the United States, civil disqualifications—including disenfranchisement—are not stated in pleas. However, this should not lead to the conclusion that these disqualifications are not ultimately punishments. As Travis (2002) argues, civil disqualifications of this sort might well be referred to as invisible punishments (16). This is especially true of practices where the disenfranchisement continues beyond the actual sentence. Travis’s suggestion concerning how to address this and other civil disqualifications associated with being a felon is that they should be made visible (in other words, they should be stated in a plea). Moreover, as they become visible, they should equally be constrained by concerns about proportionality in sentencing (Travis 2002, 35). A more worrying problem with this reply, however, is the issue of how to distinguish different sorts of civil disqualifications from each other, where one amounts to punishment and another does not. A relatively widespread definition of legal punishment is any deprivation, suffering, or constraint of liberty imposed on criminal offenders by the state or judicial authority as a direct legal consequence of those offenders’ unlawful behavior (e.g., Cholbi 2002, 2010). Using this definition, one might argue that felon disenfranchisement is a form of legal punishment. Disenfranchisement may also qualify as a form of punishment according to the so-called expressivist definitions of punishment, which emphasizes that punishment essentially expresses censure, condemnation, or denunciation.¹³ It is hard to deny that felon disenfranchisement can have an expressive dimension of this sort, as it states that those who commit serious wrongdoings are no longer considered full members of the community. Thus, the distinction between civil disqualifications and punishment is perhaps not as that clear as a proponent of the argument from democratic self-determination would wish.

In response, it could be argued that whether felon disenfranchisement is a form of civil disqualification cannot be determined without reference to the political collective that chooses to adopt it. A democratic collective has the right to choose to disenfranchise offenders who violate important normative constraints of the sort that are needed in order for citizens to lead autonomous and secure lives, as this is the direct consequence of adopting a policy that explicates the normative standard of citizenship that one adopts to govern oneself. Being able to decide who should be able to vote is part of the right to affect how the political collective defines itself. In that case, disenfranchisement is not first and foremost intended to be a deprivation or burden imposed for a criminal offense. Rather, the motivation for this policy is to express the standard of citizenship that defines the democratic collective in question. Cholbi would disagree, but in response it can be stressed that many philosophers and legal theorists hold that punishment is not merely a legal consequence; rather, they see it as a deprivation or burden that is intentionally imposed for a criminal offense as a way of expressing disapproval of the offense (see, e.g., Boonin 2008; Zimmerman 2011; Hoskins 2016). That it involves intentionally imposing some burdensome experience for an offense is what makes punishment hard to justify from a philosophical point of view. Seen in this way felon disenfranchisement is, at least in theory, not necessarily an instance of punishment.¹⁴

The above discussion makes clear that although it has a broader scope than traditional arguments, the argument from democratic self-determination also has its limits; the political collective does not have the right to adopt disenfranchisement policies if this is intended as a punishment or to disenfranchise offenders who are not guilty of crimes that involve the violation of important normative constraints. When stated in this way, however, the argument from democratic self-determination can avoid the objections raised by López-Guerra.

Having defended the argument from democratic self-determination against the objections raised by López-Guerra, I hope that it has become clear that this argument is not to be too easily dismissed. The present argument is not intended to show that felon disenfranchisement is desirable or warranted; rather, its aim is to establish that it may be permissible for a democratic collective to adopt such a practice as a way of formulating its democratic identity. I have argued that the position is tenable if disenfranchisement is restricted to criminal offenders who have violated the sort of normative constraints that are crucial in assuring citizens’ security and the prospect of leading decent lives informed by autonomous choices and if it is understood as way of expressing a normative standard of citizenship rather than imposing disenfranchisement as a condemnatory burden on the offender in response to his or her deed.

It should be made clear that although democratic collectives are permitted to adopt some forms of disenfranchisement policies in principle, it is possible that felon disenfranchisement has practical implications that render it morally problematic and perhaps even impermissible. Altman is aware of this possible objection as well, and he discusses the claim that as it is practiced in the United States, disenfranchisement is disproportionately disadvantageous to racial minorities (see Altman 2005, 269–71). As an even broader question, it is debatable whether an inherently unjust society can allow for felon disenfranchisement, as disenfranchisement of any sort may disproportionately disadvantage already marginalized groups in such a society. However, even if we assume that a society is relatively fair and just, one could add to this that disenfranchisement may create more general obstacles for and perhaps even undermine offender rehabilitation and reintegration (Dhami 2005; Easton 2011). Yet, this recognition is not incompatible with the argument from democratic self-determination. We could argue that although the argument from democratic self-determination is sound, we can also grant that were disenfranchisement to have sufficiently bad and undesirable consequences for offender reintegration, a democratic collective’s right to define its democratic identity may be overridden. Of course, whether this is so is ultimately an empirical question. It should be stressed, however, that it is reasonable to suspect that failure with regards to offender reintegration depends on a series of factors, including the scope of disenfranchisement and who is disenfranchised, as well as what else one does to facilitate offender reintegration. In some contexts, this includes failures to assist offenders to reintegrate after they have paid their due. For instance, in the United States, ex-offenders suffer from restrictions on employment, housing, student loans, and driving licenses. It is questionable whether restrictions of these kinds are morally justifiable except when they serve as an identifiable and effective risk-reductive measure (Hoskins 2014). In societies where ex-offender restrictions are far less pervasive than in the United States, it could be argued that prisoners need support during their time in prison in terms of mental health treatment, vocational training, education, decent job opportunities, and the possibility for family visits and the maintenance of meaningful contact with loved ones. These are all important in assisting and preparing the inmate for life after release, and a prison system that does little to address these issues is arguably both socioeconomically costly and morally unjustified.¹⁵ The point I wish to stress here is that retaining the right to vote is probably not the measure (at least not in comparison) that will best help inmates to reintegrate compared to other needs they might have. As Mary Sigler points out, since “voting is, as a general matter, more symbolically than practically significant, the loss of voting rights is unlikely to produce the kind of material hardship that threatens rehabilitation” (2014, 1740). In response, it could be argued that to ensure that offenders successfully reintegrate, we should also express to them that they are indeed valuable members of the community even though they have committed serious crimes (Easton 2011, 228). I am sympathetic to this point and I think that it provides a good, compelling reason for a democratic collective to choose not to bar even serious criminal wrongdoers from voting. Still, if disenfranchisement is without apparent bad effects and where other commitments to facilitating offender reintegration are in place, a legitimate democratic community has the collective right to choose whether it finds that it is a tenable way to affirm its view about the rights and responsiblities of democratic citizenship.

The argument from democratic self-determination states that felon disenfranchisement can be morally permissible because members of a democratic collective have “a right to decide to disenfranchise persons duly convicted of serious felonies” (Altman 2005, 266). This right, although circumscribed in its nature, exists because citizens of a legitimate democracy have a broad collective right to decide for themselves how to order their own affairs. That is, they have a collective right to democratic self-determination. This includes, or so I argue, the right to decide whether committing crimes that involve violation of important normative constraints, of the sort that is needed to assure individuals’ security and the prospect of leading decent lives informed by autonomous choices, is compatible with full citizenship. In this paper, I have argued that the argument from democratic self-determination can avoid the criticism raised against it by López-Guerra (2014). In doing so, I hope that I have shown not only that this argument deserves more attention from penal theorists but also that it has certain limitations. The argument does not suggest that members of a legitimate democracy have an absolute collective’s right to decide whether to disenfranchise offenders guilty of serious violations; rather, this can turn out to be overridden if the disenfranchisement policy seriously undermines offender rehabilitation and reintegration. This, however, does not rule out the notion felon disenfranchisement can be justifiable in theory.