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July 31, 2018

"Why Is It Wrong To Punish Thought?"

The title of this post is the title of this new article posted to SSRN authored by Gabriel Mendlow. Here is its abstract:

It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts — for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery.  In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one.

The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished.  The proposed justification also shows how thought’s immunity from punishment relates to a principle of freedom of mind, a linkage often assumed but never explained. 

In explaining it here, I argue that thought’s penal immunity springs from the interaction of two principles of broad significance: one familiar but poorly understood, the other seemingly unnoticed.  The familiar principle is that persons possess a right of mental integrity, a right to be free from the direct and forcible manipulation of their minds.  The unnoticed principle, which I label the Enforceability Constraint, is that the state’s authority to punish transgressions of a given type extends no further than its authority to thwart or disrupt such transgressions using direct compulsive force.  Heretofore unexamined, the Enforceability Constraint is in fact a signal feature of our system of criminal administration, governing the scope and limits of the criminal law.

July 31, 2018 at 02:31 PM | Permalink


Oh come on, we punish thoughts all the time. It is a vain trope to claim we do not. Child Pornography is the most vivid example. The test of whether a picture is CP turns on its lavaciousness, and that is entirely am mental experience. So how can it be a "vulnerable maxim" that state's do not punish people for their thoughts?

Posted by: Daniel | Jul 31, 2018 4:22:35 PM

I have proposed that white men in 1988 Camaros hunt, find, and beat the asses of appellate court judges, of regulators, and of legislators. Lash them and tie them to trees outside court and legislature for people to see coming to work on Monday. To deter, and to begin to enforce the constitution, which these legally immune insurrectionists have violated.

People here have wanted to have me arrested. Close to 100% of the adult population with jobs have shared my thought. The entire working population of the United States has committed 3 federal felonies every day at work, with both an actus reus and the mens rea, anyway. The reporting of thoughts is not even necessary, when you have business records.

The above article describes the business model of the Inquisition 1.O. That robust model lasted 700 years and produced the splendor of the Vatican. Not only were impure thoughts prohibited, but people were induced to self report themselves. Stalin promoted self criticism among journalists. They did that, and he sent to the Gulag. That 1.0 model ended when French patriots beheaded and expelled 10,000 high church officials after the French Revolution.

The model US lawyer put out the Inquisition 2.0 with the same business model, including confessions for a plea deal that takes all your assets. The remedy for 2.0 will be also have to copied from 1.0.

Posted by: David Behar | Jul 31, 2018 4:59:40 PM

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