A Democratic Theory of Punishment: The Trop Principle

In 1958, the Supreme Court of the United States ruled in Trop v Dulles that the Eighth Amendment guarantees that citizens cannot be stripped of their democratic citizenship as punishment for a crime. In this article, I draw from this case to argue for a broader ‘Trop principle’ of justifiable state punishment. The Trop principle has two components. The first is that the justification for punishment must be based in citizenship; it says that democratic citizens, thinking generally about the law, would consent to a system where certain crimes warrant the loss of liberty. The second is that punishment cannot undercut its own rationale, meaning that if citizenship is the basis for legal punishment, then punishment cannot strip those subject to it of the rights necessary to the kind of citizenship fundamental in a democracy. Altogether, the Trop principle stands against subordination and viewing prisoners as less than citizens, and I conclude by suggesting that a further implication of the Trop principle is that prisoners must retain the right to vote, to ensure they retain the ability to exercise the participatory rights of democratic citizenship, including rights to vote in prison and free speech.

Corey Brettschneider is Professor of Political Science at Brown University, where he teaches constitutional law and politics, as well as a visiting professor of law at Fordham Law School. He has also been a visiting professor at Harvard Law School and the University of Chicago Law School. His recent writing has appeared in The New York Times, Politico, and The Washington Post. His new book is The Oath and the Office: A Guide to the Constitution for Future Presidents, which Kirkus calls “vital reading for all Americans.” Brettschneider is frequently interviewed about constitutional issues on BBC, Sirius XM, and other media outlets. He is also the author of When the State Speaks What Should It Say? How Democracies Can Protect Expression and Promote Equality (Princeton University Press, 2012).  and Democratic Rights: The Substance of Self-Government (Princeton University Press, 2007). He is also the editor of the new series Penguin Liberty (Penguin/Random House) and the author of numerous articles in top journals and law reviews. His constitutional law casebook is widely used in classrooms throughout the United States. Brettschneider holds a Ph.D. in politics from Princeton and a JD from Stanford Law School.

Center for Global Ethics and Politics