18 October 2011

New Article On Unintentional Punishment

I am a long time skeptic of the exaggerated importance given to intent in our civil rights jurisprudence and have long favored instead a "takings" orientatioon to this field. Punishment that arises because "shit happens" (such as due to bureaucratic incompetence) are often as problematic, or more so, than the intentional kind, which in theory can be addressed by punishing wrongdoers. A new law review article by Adam J. Kolber at Broolyn Law School entitled "Unintentional Punishment" in the journal "Legal Theory" addresses a key intellectual reason for this stance. The abstract is as follows:

Theorists overwhelmingly agree that in order for some conduct to constitute punishment, it must be imposed intentionally. Some have argued that a theory of punishment need not address unintentional aspects of punishment, like the bad experiences associated with incarceration, because such side effects are not imposed intentionally and are, therefore, not punishment.

In this essay, I explain why we must measure and justify the unintended hardships associated with punishment. I argue that our intuitions about punishment severity are largely indifferent as to whether a hardship was inflicted purposely or was merely foreseen. Moreover, under what I call the “justification symmetry principle,” the state must be able to justify the imposition of the side effects of punishment because you or I would have to justify the same kind of conduct. Therefore, any justification of punishment that is limited to intentional inflictions cannot justify a punishment practice like incarceration because it cannot justify the side effects which necessarily accompany it.

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