Long-Term Incarceration and the Moral Limits of Punishment

65 Pages Posted: 2 Apr 2020 Last revised: 24 Oct 2020

See all articles by Jacob Bronsther

Jacob Bronsther

Michigan State University - College of Law

Date Written: March 9, 2020


Hundreds of thousands of Americans are serving decades-long prison sentences. While scholars have established that these sentences are both economically inefficient and destructive of minority communities, a fundamental question remains: Is long-term incarceration ever morally permissible? Understandably, the economists and sociologists of prison have not addressed this moral question. But neither have the philosophers of criminal law, who rarely consider sentencing issues. This Article seeks to fill this lacuna. It does so by reviving the moral and legal prohibition on degrading punishment. The Article argues that long-term incarceration is impermissibly degrading, on a par with the death penalty and penal torture.

This Article maintains that punishment is impermissibly degrading, regardless of its proportionality or social utility otherwise, when it denies an offender’s status as a human. Punishment reaches this threshold by denying the presence or worth of an offender’s essentially human capacity to stitch moments together through time to construct a good life as a whole. While incarceration takes many forms, as this Article demonstrates, all prisons deprive inmates of the ability to associate freely with other people in society. This limitation gravely interferes with an offender’s life project as the years pass by. More particularly, long-term confinement away from society inhibits the realization of certain associational goods, like having a family and a meaningful career, that one can develop only over time and which are foundational to almost all conceptions of the good life. The Article thus concludes that long-term incarceration treats an offender as a non-human—as a creature whose life-building capacity either does not exist or does not matter—and is therefore impermissibly degrading.

Keywords: Prison, Degradation, Criminal Law, Criminal Sentencing

Suggested Citation

Bronsther, Jacob, Long-Term Incarceration and the Moral Limits of Punishment (March 9, 2020). 41 Cardozo Law Review 2369 (2020), Available at SSRN: https://ssrn.com/abstract=3551228

Jacob Bronsther (Contact Author)

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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