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Defensible Disenfranchisement

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The practice of felon disenfranchisement has a long and controversial history. In the United States, the policy of denying criminal offenders the right to vote was adapted from the English tradition of “attainder,” as well as earlier notions of “outlawry” in continental Europe. In colonial America, many people were excluded from the franchise as a matter of course, but even otherwise eligible citizens could be barred from voting based on a wide range of legal and moral transgressions.

In its modern incarnation, the practice of denying the right to vote to some or all incarcerated felons or ex-felons remains common in the United States. In the United States, felon disenfranchisement is formally regulatory, not punitive, but features the harshest restrictions on offender voting rights of any modern democracy. Although forty-eight states in the United States retain some form of felon disenfranchisement, scholarly literature is overwhelmingly hostile to the practice, denouncing it as undemocratic. However, this Essay develops and defends a version of felon disenfranchisement that rejects the punitive conception in favor of a regulatory approach consistent with the values of a modern liberal democracy. This Essay first analyzes the historical arguments against disenfranchisement and the weaknesses thereof, then addresses the narrow scope and applicability of defensible disenfranchisement.

 

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