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October 18, 2011

Fascinating claims about "Unintentional Punishment"

Professor Adam Kolber, who helped prompt a whole new line of theorizing about punishment through his piece on "The Subjective Experience of Punishment" (blogged here and here), has now up on SSRN this potent follow-up titled "Unintentional Punishment."  Here is the abstract:

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.

I have previously discussed with Professor Kolber my view that his points and overall project can logically lead to a complete destruction of a retributivist defense of imprisonment (and perhaps all punishments).  In this paragraph toward the end of the "Unintentional Punishment" paragraph, Professor Kolber reinforces my views here:

While some scholars have recognized that retributivism does not provide a complete justification of real-world institutions of state-imposed and -financed punishment,I make a more damaging claim: Even if we put aside cost and administrative concerns, principles of retributive proportionality cannot even justify the amount of prison time an offender should serve because they cannot justify the unintentional hardships of prison.  I take it that even those retributivists who believe that retributivism fails to justify the allocation of resources in the criminal justice system or fails to provide a general justifying aim for punishment still believe that retributive principles of proportionality can tell us, at least in principle, how long to incarcerate deserving offenders.  I show otherwise.

October 18, 2011 at 06:08 PM | Permalink


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If my crime would generally be considered minor; i.e., threatening my neighbor with a dangerous weapon, a weed trowel nearby readily accessible but not in my immediate possession, despite the fact that my neighbor is insane (evidence not admissible in court due to DA and Judge's determinations) and I am physically harmned while under government control, then the DA and Judge should pay for all injuries incurred.

Posted by: albeed | Oct 18, 2011 11:19:18 PM

All remedies have side effects. All remedies have a dose-response curve. In the case of prison, the authorities have control over the bodies of both victim and perpetrator of any "side effect." Using current tort rules, the foreseeability of a side effect induces a duty to prevent it in the controlling authority. Torts should be allowed to solve the problem of unintended side effects.

This is a defense that has never been used in torts. The value of any benefit should be deducted from the value of any damage. Unintended benefits of prison examples. 1) helped stop addiction; 2) maturation from therapy and prison discipline; 3) criminal networking and education; 4) safety from the outside forces seeking to assassinate the person; 5) moral education; 6) prevention of additional criminal liability for crimes prevented by incapacitation; 7) benefit to family of not being abused by the prisoner, and the 100's of crimes a year prevented by incapacitation, the sole mature goal of the criminal law.

Posted by: Supremacy Claus | Oct 19, 2011 6:59:27 AM

In fact, Supremacy, this was just posted recently:
bolstering your view of "benefits".
As far as "punishments" go--prison is not the only punishment the law provides--and even innocent people are "punished" by our present legal scheme. I've had numerous assets seized by the Federal Government--including one asset so valuable it was been reported to Congress--yet I continue to be deprived of this property three years later, even after going to trial, proving I'm innocent, proving I have title, and proving I have a financial interest. I can not make or motion the court to move any faster for my "due process" under the present laws--yet must continue to be deprived of my property. I certainly find this to be a "punishment" by our Federal Government.

Posted by: folly | Oct 19, 2011 9:11:55 AM

Folly: All self-dealt governmental immunities are lawless, justified solely at the point of a gun, and delusional, being based on the psychotic maxim, the Sovereign speaks with the voice of God. Liability shrinks the entire enterprise, and is the royal road to smaller government. Liability removes the full moral, intellectual, and policy justification for violent self-help. Because government does nothing well except fund itself and grow its powers, one suspects that liability would improve its essential products and services. Even the military stinks until its operative leave government, in a repeated controlled experiments, same people, have ten times the productivity outside government.

You should find a lawyer with the physical courage to get you an injunction with severe money penalties from the personal assets of the federal thugs keeping your property for themselves.

Posted by: Supremacy Claus | Oct 19, 2011 5:43:04 PM

After the passage of time, repetition of the consequences, knowledge and malice accumulate. Past some point, the consequences stop being unintended, and become informal, stealthy policy. So the rape, assault, and murder of prisoners or staff by a small number of inmates becomes an intentional tort by prison authorities, especially the rule writing lawyers that prevent corporal punishments, and physical restraints of such individuals, including defense attorneys, and judges granting motions. All such individuals should be held liable for the damages with the foreseeability of planetary orbits. If knowledge can be shown, all policy making lawyers, especially judges, should be subject to exemplary damages assessed to their personal assets and not to the innocent taxpayers. The latter likely support strong physical controls of ultra-violent inmates and swift death penalty for those who cannot learn.

Posted by: Supremacy Claus | Oct 20, 2011 5:21:55 AM

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