, Volume 32, Issue 6, pp 729-765
Date: 01 Dec 2012

Punishment and Permissibility in the Criminal Law

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Abstract

The United States Supreme Court has repeatedly insisted that what distinguishes a criminal punishment from a civil penalty is the presence of a punitive legislative intent. Legislative intent has this role, in part, because court and commentators alike conceive of the criminal law as the body of law that administers punishment; and punishment, in turn, is conceived of in intention-sensitive terms. I argue that this understanding of the distinction between civil penalties and criminal punishments depends on a highly controversial proposition in moral theory – namely, that an agent’s intentions bear directly on what it is permissible for that agent to do, a view most closely associated with the doctrine of double effect. Therefore, legal theorists who are skeptical of granting intention this kind of significance owe us an alternative account of the distinctiveness of the criminal law. I sketch the broad outlines of just such an alternative account – one that focuses on the objective impact of legislation on a class of protected interests, regardless of the state’s motivations in enacting the legislation. In other words, even if the concept of punishment is unavoidably intention-sensitive, it does not follow that the boundaries of the criminal law are likewise intention-sensitive, because the boundaries of the criminal law may be drawn without reference to the concept of punishment. I conclude by illustrating the application of this view to a pair of well-known cases, and noting some of its ramifications.

Many individuals have provided thoughtful and detailed comments on this paper. I wish to acknowledge, in particular, Kim Ferzan and two anonymous referees at Law & Philosophy; participants at a 2012 NYU Criminal Law Theory colloquium; and comments from Alan Brudner, Matt Lister, and Chris Robertson. Research for this paper was partially supported by the Reginald F. Lewis Fellowship, for which I am extremely grateful.