Rethinking the Relationship Between Punishment and Policing: A Response to Gabriel Mendlow

9 Pages Posted: 1 Apr 2019 Last revised: 17 Dec 2019

See all articles by Kiel Brennan-Marquez

Kiel Brennan-Marquez

University of Connecticut - School of Law

Date Written: March 8, 2019


Gabriel Mendlow has published a rich and provocative essay on thought-crimes. In it, he argues that punishing thoughts is wrong, in essence, because mind-control is wrong. According to Prof. Mendlow, (1) we enjoy a right of “mental integrity” that forbids the state from controlling our thoughts, and (2) authority to control is a prerequisite of authority to punish; if the state may not control an activity directly (in this case, thinking), it is likewise forbidden from imposing criminal sanctions on the same activity after the fact.

The second proposition, which Prof. Mendlow calls the “Enforceability Constraint,” forms the heart of his argument and represents an interesting conceptual innovation. But it is also, we will see, an implausible account of criminal law. Though the Enforceability Constraint gives voice to a common sensibility about police power—namely, that authority to enforce a criminal prohibition follows automatically from the state’s authority to designate an activity prohibited and assign it a criminal penalty—ultimately it is this sensibility, not our view of thought-crimes, that needs reforming.

Ultimately, Prof. Mendlow has the core point backwards. According to him, the state may not punish at t2 an activity that officials do not even have authority to control at t1. The correct theory of criminal law, however, hews the other way: officials may not control at t1 an activity the state does not even have authority to punish at t2. In other words, punishability sets an outer limit on control. The reason is simple: a legal order that authorized officials to exert direct, physical control over activities beyond those properly designatable for criminal punishment would be a police state, one in which individual law enforcement officers, rather than legislative bodies—and ultimately, the people—set the bounds of state power. Prof. Mendlow seeks to make the mirror-image claim: that direct controllability sets an outer limit on punishment. But there is nothing infirm about a legal order in which officials are not authorized to control every activity legitimately subject to criminal sanction. In fact, this is the mark of a healthy legal order.

Keywords: Criminal Law, Jurisprudence, Police Power

JEL Classification: K10

Suggested Citation

Brennan-Marquez, Kiel, Rethinking the Relationship Between Punishment and Policing: A Response to Gabriel Mendlow (March 8, 2019). Ohio State Journal of Criminal Law, Forthcoming, Available at SSRN:

Kiel Brennan-Marquez (Contact Author)

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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