Why Is It Wrong To Punish Thought?

Author:Mendlow, Gabriel S.

ESSAY CONTENTS INTRODUCTION 2345 I. INADEQUATE RATIONALES FOR THE BAN ON THOUGHT CRIME 2346 A. The Harm Principle 2347 B. The Requirement That Criminal Transgressions Be Culpable Wrongs 2350 C. The Requirement That Criminal Transgressions Be Proved Beyond a Reasonable Doubt 2354 II. THE BAN ON THOUGHT CRIME AS A CATEGORICAL MORAL IMMUNITY 2359 III. MENTAL IMMUNITY AND FREEDOM OF MIND 2367 A. The Basic Idea 2367 B. The Enforceability Constraint 2370 C. The Right of Mental Integrity 2376 CONCLUDING REMARKS 2384 If there is any one proposition that commands general agreement among theorists and practitioners of the penal law, it is that judicial punishment ought not to be inflicted for private thoughts, wishes, inclinations, or states of character where these have not manifested themselves in conduct. Theorists from otherwise opposing philosophic schools converge on this principle. --Alan Brudner, Punishment and Freedom: A Liberal Theory of Penal Justice (1) [W]hat allegedly renders liability for [unexecuted] intentions objectionable is quite mysterious.... --Douglas N. Husak, Philosophy of Criminal Law (1) INTRODUCTION

It's a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts--for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery. Jurists often say that mere thoughts are unpunishable because they're harmless, innocent, and unprovable. But, as I'll argue in Part I, certain thoughts are every bit as dangerous, wrongful, and provable as actions we readily criminalize. If mere thoughts are unpunishable, it's instead because they're immune from punishment despite deserving it. Unlike various legal immunities, however, the immunity of thought can't rest on a pragmatic foundation. Although the specter of intrusively oppressive policing may give us reason to treat thoughts as immune from punishment, it doesn't establish that they actually are. It doesn't establish that every act of punishment for thought involves an intrinsic (i.e., consequence-independent) injustice to the person punished: that every such act necessarily wrongs the thinker. In an influential set of books and articles, R.A. Duff has sought to ground the intrinsic injustice of punishment for thought in the value of moral autonomy. But, as I'll argue in Part II, Duff's argument presupposes something that Part I reveals as false: that no single thought is dangerous or wrongful enough to warrant punishment.

In place of these flawed rationales, Part III proposes that punishment for thought is intrinsically unjust because it's a form of indirect mind control. The proposed rationale captures the widely shared intuition that punishment for thought isn't simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic injustice to the person punished. The proposed rationale also shows how thought's immunity from punishment relates to a principle of freedom of mind, a linkage often assumed but never explained. In explaining it here, I argue that thought's penal immunity springs from the interaction of two principles of broad significance: one familiar but poorly understood, the other seemingly unnoticed. The familiar principle is that persons possess a right of mental integrity, a right to be free from the direct and forcible manipulation of their minds. We'll see that this right undergirds a set of important principles governing the relationship between the mind and and the state (principles concerning such things as education, brainwashing, and forced medication), of which the ban on thought crime is merely one. The seemingly unnoticed principle is that the state's authority to punish transgressions of a given type extends no further than its authority to thwart or disrupt such transgressions using direct compulsive force. This principle, which I call the Enforceability Constraint, holds that the state may ensure compliance with a given norm through criminal punishment only when the state may in principle force compliance with that norm directly.

Heretofore unexamined, the Enforceability Constraint is in fact a signal feature of our system of criminal administration, governing the scope and limits of the criminal law. When conjoined with the principle that persons possess a right of mental integrity, the Enforceability Constraint entails that punishment for thought is intrinsically unjust: if using mind control to force compliance with a thought-proscribing norm would violate a potential norm-breaker's right to mental integrity, then so too would exposing the norm-breaker to punishment. That is why it's wrong to punish thought.


    Theorists often claim that criminalizing mere thought would unleash the worst sort of tyranny and oppression. According to James Fitzjames Stephen, if we criminalized every improper thought, "all mankind would be criminals, and most of their lives would be passed in trying and punishing each other for offenses which could never be proved." (3) H.L.A. Hart adds: "Not only would it be a matter of extreme difficulty to ferret out those who were guilty of harboring, but not executing, mere intentions to commit crimes, but the effort to do so would involve vast incursions into individual privacy and liberty." (4) Quoting Stephen, Hart concludes: "[T]o punish bare intention 'would be utterly intolerable.'" (5)

    These assertions are facile. To be sure, life would be intolerable under a regime that punished every improper mental state--every sadistic fantasy, evil desire, and hateful belief. But life also would be intolerable under a regime that punished every improper act--every unldndness and petty betrayal, no matter how harmless, innocent, or difficult to prove. That's an excellent reason not to punish every improper act. It's a terrible reason not to punish any act. In punishing acts, legal systems can and do discriminate between the grave and the paltry. If a legal system elected to punish thoughts (the word I'll often use to denote the entire class of mental states), the state could exercise like discretion, punishing only the rare thought that's dangerous, depraved, and provable. The key question is whether any such thought exists, and it's a question that Stephen and Hart evade.

    I'll argue that the answer is yes. Contrary to the received wisdom, certain thoughts are dangerous, depraved, and provable. Thus, the ban on punishing mere thoughts can't be justified by any of the leading rationales: the harm principle, the requirement that criminal transgressions be culpable wrongs, or the requirement that criminal transgressions be proved beyond a reasonable doubt.

    I'll consider these rationales in turn.

    1. The Harm Principle

      Reporting a common view, RJ. Fitzgerald notes that "[t]he comparative harmlessness of mere thoughts and intentions by themselves is considered sufficient reason for not punishing them. The small degree of harm likely to result from such intentions is not thought to justify the interference with liberty which punishment would involve." (6) If thoughts aren't more than minimally harmful, then criminalizing them violates John Stuart Mill's harm principle. According to the harm principle, "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." (7) But is Fitzgerald right that thoughts never risk more than a "small degree of harm"?

      Actions sometimes risk a large degree of harm, and actions typically flow from thoughts. So the question isn't whether thoughts ever risk harm. It's which thoughts risk harm, and how much.

      As a class, thoughts vary greatly with respect to how much harm they risk because they vary greatly with respect to the likelihood that they'll lead to actions. Some thoughts are basically inert. For example, a non-normative belief (e.g., that there's water in my cup) won't incline me to act unless accompanied by an "active thought" (8) like a normative belief (e.g., that I should avoid dehydration) or a desire or intention (e.g., to drink). Even within the sub-class of "active thoughts," mental states come in two fundamentally different varieties, as Duff explains:

      First, there are those the completion of which requires no world-impacting action: fantasising or contemplating, for instance, might lead to overt action but are not necessarily frustrated without it; they can be completed within the realm of thought. Secondly, there are kinds of thought the completion of which requires overt action. Decision and intention formation are obvious examples: whilst I can fail to do what I decide or intend to do, such lack of overt action frustrates my decision or intention; such thinldng demands overt action in a way that the first kind does not. (9) Conceivably, we'd contravene the harm principle if we criminalized thoughts of the first land, thoughts "the completion of which requires no world-impacting action"--although the threat that heterodox beliefs pose to authoritarian governments and the resultant zeal with which they're criminalized both bespeak a darker and not altogether implausible view of the dangerousness of thoughts that by their nature "might lead to overt action but are not necessarily frustrated without it." The harm principle presents far less of an obstacle to criminalizing mental states of the second kind, those "the completion of which requires overt action." It's for this reason that the Essay will focus primarily on a particular aspect of the prohibition on punishing mere thought: namely, the harder-to-justify prohibition on punishing mere intent.

      Fitzgerald is simply wrong to assume that unexecuted intentions risk only a "small degree of harm." Consider a person's intention to kill, particularly when formed after extensive reflection and deliberation. Is...

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