"Unintentional Punishment"

The title of this post is the title of this notable new paper by Professor Adam Kolber, which is now available via SSRN. Here is the abstract:

Criminal law theorists overwhelmingly agree that for some conduct to constitute punishment, it must be imposed intentionally.  Some retributivists have argued that because punishment consists only of intentional inflictions, theories of punishment can ignore the merely foreseen hardships of prison, such as the mental and emotional distress inmates experience.  Though such distress is foreseen, it is not intended, and so it is technically not punishment.

In this essay, I explain why theories of punishment must pay close attention to the unintentional burdens of punishment.  In two very important contexts — punishment measurement and justification — we use the term “punishment” to capture not only intentional harsh treatment but certain unintentional harsh treatment as well.  This means that the widely accepted view that punishment is an intentional infliction requires substantial caveats.  It also means that any purported justification of punishment that addresses only the intentional infliction of punishment is woefully incomplete.