Brennan-Marquez on The Power to Punish

Tuesday, April 9, 2019

 

Here, I respond to Gabriel Mendlow's recent essay, "Why Is It Wrong to Punish Thought?", which argues that criminalizing thought is wrong, in essence, because mind-control is wrong. According to Prof. Mendlow, (1) we enjoy a right of “mental integrity” that forbids the state from controlling our thoughts, and (2) if the state may not control an activity directly (in this case, thinking), it is likewise forbidden from punishing the same activity after the fact; the power to control is a necessary condition of the power to punish. 

Ultimately, Prof. Mendlow is not wrong to see a conceptual link between the power to punish and the power to control. But it is the converse of what he suggests. The power to punish does not entail the power to control. Rather, the power to control entails the power to punish, because the state may not forcibly stop an activity it does not even have authority to penalize ex post.

Although Prof. Mendlow's theory may have the effect of limiting state power in the specific context of thought-crimes, its more general effect would be to expand state power. Its logical consequence is that whenever the state may legitimately a punish an activity — as it often may — it may also, in principle, control the activity directly. That would be a vast and startling development.

https://lawprofessors.typepad.com/crimprof_blog/2019/04/brennan-marquez-on-the-power-to-punish.html

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Brennan-Marquez on The Power to Punish curated from CrimProf Blog