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

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.