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Unintentional Punishment

30 Pages Posted: 17 Oct 2011 Last revised: 7 Apr 2012

Adam J. Kolber

Brooklyn Law School

Date Written: October 17, 2011

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, Consequentialism, Subjective Experience, Intention

Suggested Citation

Kolber, Adam J., Unintentional Punishment (October 17, 2011). Legal Theory, Vol. 18, p.1, 2012; NYU School of Law, Public Law Research Paper No. 12-10. Available at SSRN: https://ssrn.com/abstract=1945286

Adam Jason Kolber (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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