Abstract

This chapter argues that police power has shaped not only the execution of penal sanctions in so-called correctional facilities but the American penal process in its entirety. As a police matter, American penal law never underwent the basic critique in light of the principles that ostensibly drove the American Revolution and that continue to shape American political self-understanding and ideology. While the Enlightenment drew into question the very legitimacy of punishment in a state self-governed by autonomous persons, American political and legal thought largely perceived, and ignored, the problem of punishment as an administrative police issue. Contemporary American penal law, then, appears as a police system—albeit a fairly primitive and inefficient one—for the identification and disposal of human threats, with little regard to hallowed principles like actus reus and mens rea that are little more than anachronistic remnants of the common law without any obvious connection to more fundamental questions of legitimacy. Focusing on the ultimate source of legitimacy in a modern democratic state and in the American Republic in particular—autonomy, or self-government—the chapter sharpens the features of this police model of the penal process by contrasting it with an alternative model that would submit itself to, rather than avert, the sort of legitimacy critique that a purported commitment to the protection of the “life, liberty, and property” of citizen-offenders in a Rechtsstaat would seem to demand.