State intentions and the law of punishment.

AuthorRistroph, Alice
  1. INTRODUCTION

    With respect to states of mind, we are of many minds. Sometimes we think mental states matter, and sometimes we think they don't. Most simply, bare voluntariness is usually viewed as a threshold requirement for legal or moral responsibility. Perhaps it seems obvious that purposeful acts should be treated differently than mere accidents, an intuition reflected in Holmes's quip that "even a dog distinguishes between being stumbled over and being kicked." (1) In some contexts, legal standards not only ask whether an action was voluntary rather than accidental, but inquire further and attempt to determine the actor's specific purposes or reasons for action. In still other circumstances, the law denies the relevance of subjective mental states altogether by imposing strict liability standards or "objective" tests. Again, we are of many minds: sometimes we forgive or even admire those who mean well but do badly; at other times we say that good intentions pave the road to hell.

    Inquiries into purpose, intention, and motivation are especially prevalent in constitutional doctrine. (2) Though it is not intuitively obvious that the government entities regulated by these doctrines can be said to possess "states of mind" at all, courts have developed various methods to assess governmental motives or purposes. (3) As many scholars have noted, motives play central roles in First and Fourteenth Amendment analysis. (4) The difference between a valid regulation of speech and a violation of the First Amendment might turn on whether the state intends to suppress particular ideas. (5) The permissibility of public displays of religious symbols can rest on whether the state intends to promote religion. (6) The constitutionality of state action with disparate impact by race or gender may turn on whether the state intends to discriminate. (7) Courts and academic commentators alike frequently refer to Holmes and the dog's distinction to explain these rules: the Constitution is violated not when an individual is stumbled over by state actors, but only when she is kicked. (8)

    Of course, the state doesn't often literally kick its citizens. But in the enforcement of criminal laws, it regularly uses physical force against them. And in the constitutional doctrines that apply to the most systematic and severe uses of force--imprisonment and execution--state intentions matter greatly. (9) Constitutional evaluations of prison and death sentences begin with questions about the state's specific "penological purpose." When those already incarcerated challenge specific events or conditions within a prison, constitutional doctrine requires an assessment of prison officials' intentions. In sharp contrast to the law of constitutional criminal procedure, which often eschews inquiries into police officers' subjective mental states, the law of punishment frequently asks what state actors intended. (10)

    This Article takes up two questions concerning state intentions, one inquiry narrow and doctrinal, the other much broader and more conceptual. With respect to doctrine, the Article examines the substantial, but so far overlooked, role of intent analysis in the constitutional law of punishment. This task is newly important, as it is only recently becoming evident that there is a constitutional law of punishment, distinct from the constitutional law of arrests, investigations, and trial procedure. (11) As the United States' prison population continues to expand and as death sentences continue to capture substantial public and judicial attention, many of the most pressing controversies in criminal justice concern not the ways in which government investigates or prosecutes crime, but what it does to criminals after conviction. (12) In this context, we need to learn the constitutional law of punishment, and an important first lesson is the ways in which a state's penological purposes (or lack thereof) determine the constitutionality of punishment. (13)

    State intentions are relevant to the constitutional law of punishment in three primary ways. First, as a threshold matter, courts may decline to apply the Ex Post Facto Clause, Double Jeopardy Clause, or other constitutional restrictions on the penal power unless the challenged policy or practice was adopted with punitive intent. In other words, if a restrictive state action that resembles punishment--confinement in a state prison, for example--is intended to serve civil, nonpunitive goals, the constitutional restrictions on punishment do not apply. (14) Second, courts evaluate the state's penological purposes as a component of Eighth Amendment proportionality analysis. When a defendant challenges a sentence as excessive and thus "cruel and unusual," courts will inquire into the state's purposes in punishing to decide whether the sentence is in fact too severe. (15) Finally, official intentions matter in the analysis of Eighth Amendment challenges to prison conditions or uses of force within prison. A prisoner challenging the conditions of his confinement must show that prison officials acted with "deliberate indifference" to serious deprivations, and a prisoner alleging excessive force must show that prison officials acted with sadistic or malicious intent. (16)

    In practice, then, the success or failure of a constitutional challenge to punishment often depends on an assessment of official intent. Usually, it is failure; successful constitutional challenges to punishment are very rare. To understand this result, I suggest, we must appreciate the imprecision--what has been called the "slop"--of determinations of intent. (17) When an observer or fact-finder assesses the intent of another individual or of an institution, there is nearly always room for interpretation. The punitive or penological purposes of a legislature, and even the mental state of a particular prison official, can usually be presented at the time of litigation in a way that avoids constitutional offense. It is very difficult for individual litigants to prove convincingly the subjective mental states required to establish a constitutional violation. (18) Evidentiary ambiguities allow for discretionary judgment, and courts have considerable leeway to find the requisite intent (or not) in order to reach a preferred outcome.

    Thus, there is a second sense in which we are of many minds about states of minds: in any particular case, you and I may have different assessments of a third person's state of mind. This observation is not a claim of epistemic futility--it is not that "we just can't know" intentions, and so any effort to determine them is hopeless. Rather, it is a call for honesty about epistemic limitations and the opportunities they produce. In a famous philosophical study of intention, Elizabeth Anscombe argued that claims about an individual's intentions could be verified by an external observer, but only "up to a point." (19) Eventually, "there comes a point at which the skill of psychological detectives has no criteria for its own success." (20) This claim about individual intentions has even greater force when applied to institutional intentions, since the very concept of institutional intention already entails the attribution of intention to the institution. We can and do make claims about what a person, or corporation, or legislature, intended; the point here is simply that in making those claims, we rely on normative and often contested judgments. (21)

    As we identify a constitutional law of punishment, then, we might also find occasion for critical reflection on its emphasis on state intentions. Such reflection is the second, and broader, purpose of this Article. Of particular interest is a growing body of philosophical literature that questions whether an actor's intentions determine the moral permissibility of his action. (22) This work in philosophy stands in stark contrast to the discussions of government motives in constitutional theory, where most scholars have accepted the premise that motives are relevant to constitutionality. (23) This Article brings the arguments from these two disciplines together in order to evaluate the role of state intentions in the law of punishment. This evaluation reveals that many of the constitutional theorists' arguments in defense of motive analysis in First or Fourteenth Amendment jurisprudence are inapplicable or unpersuasive in the context of state punishment. At the same time, many of the philosophers' reasons to deny the normative significance of intentions are especially powerful in the context of state punishment. Together, these literatures suggest some grounds for caution about motive analysis in the law of punishment. In practice, the emphasis on state intentions has given courts that are sympathetic to state agencies, and unsympathetic to prisoners, an opportunity to ensure that most constitutional challenges to punishment fail. Notwithstanding the development of a constitutional law of punishment that could serve to limit the power to punish, the courts have chosen a deferential approach and penal practices have been left relatively unregulated.

    Doctrinal standards that focus more on objective factors and less on the state's intentions might ensure somewhat more meaningful regulation of punishment; this Article notes the standards that seem most ripe for reform. However, adjustments to doctrine, standing alone, are unlikely to transform the constitutional law of punishment into the strong limitation on state power that many observers might like it to be. We probably cannot eliminate all inquiries into state intentions, and it is not clear that we would want to do so. It is nonetheless useful to identify and scrutinize the doctrines of state intentions: this endeavor helps us see what these doctrines can, and cannot, accomplish. Ultimately, awareness of the limitations of motive-based constitutional doctrines may simply provide an incentive to explore...

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