Long-Term Incarceration and the Moral Limits of Punishment

53 Pages Posted: 2 Apr 2020

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 degrades an offender over time. Long-term confinement away from society inhibits the realization of certain associational goods, like having a family and a meaningful career, which are foundational to almost all conceptions of the good life. Long-term incarceration, in sum, is a slow-forming injury to one’s life project.

The Middle Ages are over. We no longer draw and quarter offenders in the town square. Nonetheless, this Article argues that we still degrade offenders. We do so not by pulling apart their bodies, or reducing them to animals, or making them howl in agony. We do so by ruining their lives.

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 (Forthcoming). Available at SSRN: https://ssrn.com/abstract=3551228

Jacob Bronsther (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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