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August 4, 2009

"State Intentions and the Law of Punishment"

The title of this post is the title of a newly posted piece on SSRN from Alice Ristoph.  Here is the abstract:

Forget dogs: do people distinguish between being stumbled over and being kicked? Assessments of intentions are considerably more complex than Holmes’s classic quip suggests.  This Article examines the substantial, but so far overlooked, role of intent analysis in the constitutional law of punishment.  As a doctrinal matter, the success or failure of a constitutional challenge to punishment often depends on a judicial assessment of official intent.  As a normative matter, constitutional theory and moral philosophy offer conflicting accounts of the significance of intentions to the legal or moral permissibility of acts.  Many of the constitutional theorists’ arguments for motive analysis have little applicability in the context of state punishment, and many of the philosophical reasons to deny the normative significance of intentions are especially powerful in that context.  If the Constitution is to provide meaningful limitations on the power to punish, we should reconsider, and reduce, the current doctrinal emphasis on state intentions.

August 4, 2009 at 06:13 PM | Permalink


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Intent is unlawful, violating the Establishment Clause.

1) It comes from the element analysis of mortal sin in the Catholic Church catechism.

2) It is supernatural. Not even the Medieval church believed man could read minds. It believed God would judge intent upon arrival in heaven.

3) You do not know if the hunter shooting another thinking it a deer is less or more dangerous than the hunter shooting another because the other's wife paid him $10,000. The careless, alcoholic, lethal hunter may leave jail, and kill a busload of kids driving drunk, the wrong way on a highway. We do know the contract killer has good discipline and will kill only if paid. One goes home, one is executed. Ahead of time and without analysis of prior damage and injuries, one cannot know which should be which.

4) Disclosure. The average person has been indoctrinated in this doctrine, and supports it. They do no want the drunken hunter executed because he did not really mean it. So there may be an universal human tendency to forgive unintended damage, however much bigger than any intended damage. From the victim perspective, this is insane, if popularly accepted.

5) Ideally, without analysis of intent, all crime would be strict liability. The consequence to the defendant would be set by an executive crime management agency. It should be liable to future victims if it deviates from crime management professional standards.

Posted by: Supremacy Claus | Aug 4, 2009 7:07:02 PM

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