The Productive Failure of Felon Disenfranchisement: Dilts’ Punishment and Inclusion

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.¹ In Alabama, Kentucky, and Florida, the rate is even more extreme: more than 1 in 5 African Americans are barred from voting. Andrew Dilts’ book, 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.

Dilts argues that felon disenfranchisement is a productive failure that, in the absence of a coherent political justification, performs the vital function of managing membership and justifying exclusion in the liberal carceral state. In short, the book shows “how liberalism succeeds by failing the felon” (16). The primary work of felon disenfranchisement is to police the boundaries of citizenship, to reproduce a system of white supremacy, and to efface or obscure the structural and state violence of liberal democracy. Disenfranchisement performs this work by producing both the figure of the “dangerous felon” as an excluded, abnormalized, racialized, and dis-abled criminal, and the figure of the “innocent citizen” as a normalized, white, male, able citizen. Dilts analyzes these co-constitutive subject positions in relation to both a biopolitical cut between those who must live and those who may die, and a neoliberal distinction between subjects and objects of human capital. Given the role of disenfranchisement in (re)producing liberal political subjectivity, the inclusion of those who have been excluded from voting is not enough; we need a collective refiguration of political praxis and subjectivity. Ultimately, Dilts problematizes his own focus on voting as a privileged mark of citizenship, while calling for an end to disenfranchisement as a necessary but insufficient condition for collective liberation. He shows how liberalism generates problems that it cannot solve, in part because these problems are systematically built into its concepts, arguments, institutions, and subject-positions.

Chapter 1 outlines the basic argument of the book and situates this argument in relation to current practices and effects of felon disenfranchisement in the US. Chapter 2 tracks the production of the disenfranchised felon as a figure who is beyond rehabilitation or redemption, and who is therefore no longer entitled to a political voice. Like the delinquent in Foucault’s Discipline and Punish – the incorrigible remainder of the penitentiary system, produced in tandem with the docile body that yields to the panoptic gaze – the disenfranchised felon is defined not so much by what he has done but by what he is presumed to be. This logic is succinctly expressed in Foucault’s account of an analogous figure, the criminal monster: “After all, if he has stolen, it is basically because he is a thief” (Abnormal, qtd. on 38). The shift from doing to being, and from the punishment of criminal acts to the production, surveillance, and management of criminality, collapses the difference between past, present, and future into a flat temporality in which some people will have always already been disqualified from the political subjectivity of the citizen. By virtue of this flat temporality, the figures of the delinquent, the monster, and the disenfranchised felon work to stabilize the figure of the proper citizen, whose status is leveraged on the exclusion of others. The wheat is not simply separated from the chaff, but produced as wheat at the expense of the chaff. The branded felon is not just left outside the protective circle of citizenship, but is simultaneously exiled and detained, confined to the margins of the demos to which it does not belong but for which it performs a useful service.

Chapter 3 presents a wonderfully clear and comprehensive outline of the different approach taken by neoliberal penality, as presented in Foucault’s lectures on...