Punishment and the Burden of Proof

14 Pages Posted: 7 Jul 2017  

Michael Louis Corrado

University of North Carolina (UNC) at Chapel Hill - School of Law

Date Written: March 3, 2017

Abstract

Justifying state punishment presents a difficulty for those who deny that human actions are free in the sense required by moral responsibility. The argument I make in this paper, following work done by Double, Vilhauer, and Sehon, is that those who believe that human beings do sometimes act freely face exactly the same difficulty, for no current account of freedom has the sort of evidentiary support that condemning a person to punishment requires; no current account could meet even the most minimal burden of proof. Recourse to purely preventive methods, such as are proposed for a system of quarantine of dangerous individuals, seems undesirable because of the absence of limits under such a system, limits like the requirements of proportionality and guilt. That same objection holds as well against proposals of non-retributive punishment: the adoption of a system of punishment, understood retributively or non-retributively, does not preclude the state even in theory from also adopting a system of preventive measures. The answer that I suggest is a system of limited deprivations of freedom justified in much the way the doctrine of takings is justified, along with the specific exclusion of purely preventive methods for competent individuals.

Suggested Citation

Corrado, Michael Louis, Punishment and the Burden of Proof (March 3, 2017). UNC Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2997654

Michael Louis Corrado (Contact Author)

University of North Carolina (UNC) at Chapel Hill - School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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