U.S. flag

An official website of the United States government, Department of Justice.

NCJRS Virtual Library

The Virtual Library houses over 235,000 criminal justice resources, including all known OJP works.
Click here to search the NCJRS Virtual Library

State Intentions and the Law of Punishment

NCJ Number
Journal of Criminal Law and Criminology Volume: 98 Issue: 4 Dated: Summer 2008 Pages: 1353-1406
Alice Ristroph
Date Published
54 pages
This article evaluates the role of state intentions in the law of punishment.
The article showed that there is a constitutional law of punishment, although its restrictions are not very powerful. The weaknesses of these restrictions seem related to the significant role that state intentions play in determining the constitutionality of state action. This analysis of the doctrinal significance of state intentions provides a more informed perspective on both the laws of punishment as it has been and the law as it might be. Part 2 of this article identifies some key points of reference, distinguishing different roles that assessments of intent play in legal analysis; the aim is not to be comprehensive, but to place in the foreground some features of intent analysis that will help clarify the constitutional law of punishment. Part 3 of the article turns to constitutional doctrine, tracing the three primary areas in which state intentions matter to the regulation of punishment. Part 4 of this article examines an array of explicitly normative arguments concerning whether and why intentions should matter to the legal or moral permissibility of an action and part 5 of this article applies those arguments to the constitutional doctrines that regulate punishment.