Unintentional Punishment

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

Authors
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. [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
Categories (categorize this paper)
DOI 10.1017/s1352325211000218
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

Our Archive


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 42,236
Through your library

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.
Do the Guilty Deserve Punishment?Richard W. Burgh - 1982 - Journal of Philosophy 79 (4):193-210.

View all 10 references / Add more references

Citations of this work BETA

Two Mistakes About the Concept of Punishment.Vincent Geeraets - 2018 - Criminal Justice Ethics 37 (1):21-35.

Add more citations

Similar books and articles

The Subjective Experience of Punishment.Adam J. Kolber - 2009 - Columbia Law Review 109:182.
Must Punishment Be Intended to Cause Suffering?Bill Wringe - 2013 - Ethical Theory and Moral Practice 16 (4):863-877.
Making Sense of Retributivism.J. Angelo Corlett - 2001 - Philosophy 76 (1):77-110.
Punishment: The Future.David Wood - 2010 - Philosophy Compass 5 (6):483-491.
Punishment: Consequentialism.David Wood - 2010 - Philosophy Compass 5 (6):455-469.
Punishing the Innocent — Unintentionally.Alan Wertheimer - 1977 - Inquiry: An Interdisciplinary Journal of Philosophy 20 (1-4):45 – 65.
Kant's Theory of Punishment.Thom Brooks - 2003 - Utilitas 15 (2):206.
Retributivism Revisited.Nathan Hanna - 2014 - Philosophical Studies 167 (2):473-484.
The Comparative Nature of Punishment.Adam J. Kolber - 2009 - Boston University Law Review 89 (5):1565-1608.

Analytics

Added to PP index
2012-04-09

Total views
77 ( #102,326 of 2,253,874 )

Recent downloads (6 months)
32 ( #24,105 of 2,253,874 )

How can I increase my downloads?

Downloads

My notes

Sign in to use this feature