“The Limits of ‘Punishment'”

The title of this post is the title of this new paper authored by Benjamin Levin now available via SSRN. Here is its abstract:

“Punishment” is an all-important category in criminal legal thought.  Conventional scholarship adopts a narrow definition and focuses on justifying penal sanctions.  Much critical work, in contrast, seeks to expand the category — defining more practices and institutions as “punishment.”  In this Article, I argue that the focus on purposes of punishment and on what constitutes punishment distracts from a larger theoretical and practical issue — much of what the criminal system does probably isn’t punishment as such.   Certainly, a carceral sentence is punishment.  But what about a curfew requirement for a defendant awaiting trial? What about a restriction on gun ownership post conviction?  What about a traffic stop?  Each of these restrictions on liberty or interactions with the criminal system might be stigmatizing or cause great hardships.  So, it might be tempting to categorize them as “punishment.”

While I am skeptical of conventional formalist definitions of “punishment,” I argue that striving to define more acts or institutions as “punishment” actually doesn’t accomplish much — as a doctrinal matter, judges are reluctant to afford defendants increased substantive or procedural rights in this realm.  As a theoretical and even rhetorical matter, the punishment frame undersells the nature and scale of the carceral state.  I argue instead that it might be more helpful to focus on “criminal justice” as a form of governance — a constellation of institutions and approaches that sometimes punish, sometimes deliver services, and sometimes do social control.  Sometimes these institutions perform all three functions (and more), and that’s a major problem with the U.S. criminal system.