Legal Theory 18 (1):1-29 (2012)

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. [This paper has been published under a Creative Commons Attribution-NonCommercial-ShareAlike license.].
Keywords punishment  retributivism  intention  doctrine of double effect  prison  consequentialism  subjective experience
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DOI 10.1017/s1352325211000218
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References found in this work BETA

Two Concepts of Rules.John Rawls - 1955 - Philosophical Review 64 (1):3-32.
Punishment and Justification.Mitchell N. Berman - 2008 - Ethics 118 (2):258-290.
Intending, Foreseeing, and the State.David Enoch - 2007 - Legal Theory 13 (2):69-99.
Why Punish the Deserving?Douglas N. Husak - 1992 - Noûs 26 (4):447-464.

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Citations of this work BETA

Continuity in Morality and Law.Re'em Segev - forthcoming - Theoretical Inquiries in Law.
Two Mistakes About the Concept of Punishment.Vincent Geeraets - 2018 - Criminal Justice Ethics 37 (1):21-35.

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