Monday, August 17, 2009
Alice Ristroph (Seton Hall University - School of Law) has posted State Intentions and the Law of Punishment (Journal of Criminal Law & Criminology, vol. 98, No. 4, pp. 1353-1406, Summer 2008) on SSRN. Here is the abstract:
Forget dogs: do people distinguish between being stumbled over and being kicked? Assessments of intentions are considerably more complex than Holmes’s classic quip suggests. This Article examines the substantial, but so far overlooked, role of intent analysis in the constitutional law of punishment. As a doctrinal matter, the success or failure of a constitutional challenge to punishment often depends on a judicial assessment of official intent. As a normative matter, constitutional theory and moral philosophy offer conflicting accounts of the significance of intentions to the legal or moral permissibility of acts. Many of the constitutional theorists’ arguments for motive analysis have little applicability in the context of state punishment, and many of the philosophical reasons to deny the normative significance of intentions are especially powerful in that context. If the Constitution is to provide meaningful limitations on the power to punish, we should reconsider, and reduce, the current doctrinal emphasis on state intentions.