Criminals and (Second-Class) Citizenship: Twenty-First Century Attainder?

Abstract

This article considers whether criminal offenders in Australia are second-class citizens. Using TH Marshall's seminal conception of citizenship, the article discusses various ways in which offenders' civil, political and social rights are delimited in Australia. While acknowledging that the liberty of prisoners is curtailed - which is the defining and necessarily punitive feature of imprisonment - the article argues that the legal system goes further, imposing a range of collateral consequences on offenders that seriously infringe other fundamental rights. Using penological and liberal theories, consideration is given to the question of whether the impairment of offenders' fundamental citizenship rights can be justified. It is argued that the impairment of rights discussed is not theoretically justifiable, and is arguably best explained as an anachronistic remnant of attainder. Conviction of felony renders a man for ever infamous in England, - infamous in law, - and attaches to him for life certain disabilities, which incapacitate him for exercising some of the rights and duties of citizenship. It is not enough that the felon pay the immediate penalty which the law awards to his crime. Other consequences, both legal and moral, flow from the fact of the conviction. So accordant is all this with the spirit and feeling of the British people, as well as with the genius of British institutions, that there is not, perhaps, in all England, a public body of any description, - not even a single benefit society, - or even a convivial club, - in which the conviction of a member for felony is not instantly followed by the expulsion of the member so convicted from the society to which he belongs 崨ereby declaring the universal feeling of the entire British people, that a convicted felon is unworthy both of future trust and of mingling with and participating in the provident arrangements or the social enjoyments of his former associates and fellow subjects.1