The Limits of “Punishment”

“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 the 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 postconviction? 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. Moving beyond a focus on what is or isn’t punishment should help us to see more clearly how criminal legal institutions operate—and what it would mean to reform, transform, or abolish those institutions.

Table of Contents Show

Introduction

Over the past half century, the United States has incarcerated people at an unprecedented rate. In 2023, federal, local, and state authorities locked up 1.9 million people nationwide.[1] Per capita, that means that the United States cages people at a rate of 583 per 100,000.[2] Since the early 1970s, incarceration rates have skyrocketed.[3] Fifty years after the initial spikes in prison populations, concerns about incarceration—and significant disparities in incarceration rates across lines of race and class—have made critiques of “mass incarceration” mainstream in academic and policy circles.[4]

But incarceration statistics can’t begin to capture the sweep of criminal law’s impact. “Although mass incarceration is perhaps the most serious and pressing problem with the criminal justice system in the United States, most criminal cases are misdemeanors and often do not result in jail or prison time”; therefore, some commentators have suggested that “[t]he problem is thus better characterized as one of mass criminalization”[5] or “mass conviction.”[6] Understanding the effects of the criminal system requires looking beyond the number of people held behind bars.[7]

In 2023, 800,000 people were on parole, and another 2.9 million people were on probation.[8] Roughly one in three adults has some kind of criminal record.[9] And police make more than a million arrests annually, so those numbers continue to grow.[10] Those figures don’t even include people who might be stopped by police, subject to police violence, brought in for questioning, or subject to some form of police surveillance without ever being arrested, charged, and convicted. Nor do they include broader networks of people affected by the criminal system—not only victims of crimes and witnesses, but also family members, neighbors, friends, and others who might stand once removed from the formal processes of penal administration.

Nevertheless, “punishment” remains the dominant language that commentators use to talk about the criminal system. In drawing the line between “civil” and “criminal,” the U.S. Supreme Court has focused on what state action constitutes “punishment.”[11] Advocates and academics emphasize “over-punishment” as a chief concern of contemporary U.S. criminal policy.[12] Philosophers and mainstream criminal legal theorists focus on the purposes or justifications of punishment as central to understanding criminal law.[13] More radical commentators argue that the criminal system reflects the logic of punishment run amok.[14] They refer to institutions of penal administration as “the criminal punishment system,”[15] and they argue that a sweeping universe of practices and institutions constitutes punishment.[16]

It is no surprise that punishment retains such purchase in discussions of criminal policy. Jails and prisons are brutal institutions that occupy a massive role in U.S. political economy and the public imagination.[17] And much of what might set criminal law apart from other regulatory frameworks or legal institutions is the possibility of punishment—the severe restrictions of liberty and the imposition of state violence that it entails.[18]

In this Article, though, I argue that the focus on the 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 it’s commonly understood. And it’s not even clear how helpful it is to think of many elements of penal administration as punishment. Social control, exclusion, and management might be “punishment” in the sense of responding to perceived wrongdoing or imposing hardship or stigma. But the language of “punishment” often invites an emphasis on intent rather than effect—on why state actors chose a course of action, not on the consequences of that action.[19] Instead, I argue 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 criminal system—that it has taken on so many functions.[20]

Formalist or realist attempts to define the limits and contours of punishment often miss what’s really going on—both what the institutions are meant to do as a normative matter and what they actually are doing as a descriptive matter. Certainly, a carceral sentence is punishment. But what about a curfew requirement for a defendant awaiting trial? What about a restriction on gun ownership postconviction? What about a traffic stop? For judges and mainstream penal theorists, the easy answer to each question is “no.”[21] That response has led to a criminal legal literature and body of case law that reflect cramped understandings of the criminal system and its real-world consequences.[22] Each of these restrictions on liberty or interactions with the criminal system can be disruptive and cause great suffering—suffering that is excluded from conventional criminal law courses and scholarship. So, it’s tempting to categorize them as “punishment.” And that’s the tack that many academics, advocates, and activists have taken, leading to an ever-expanding literature that attempts to fit more practices and more hardships into the “punishment” category.[23]

In this Article, though, I argue that striving to define more acts or institutions as punishment doesn’t actually accomplish much: As a doctrinal matter, judges generally aren’t interested in expanding the definition of punishment or in affording defendants increased substantive or procedural rights in this realm.[24] As a theoretical and even rhetorical matter, the punishment frame undersells the nature and scale of the carceral state.[25] In this respect, my arguments draw from and contribute to a sociolegal literature that traces the boundaries of the “penal state”—investigating how criminal legal institutions and logics operate beyond a straightforward framework of “crime” and “punishment.”[26] Additionally, this Article contributes to a growing literature that seeks to shift the theoretical framework for studying penal administration—assessing criminal policy through the lens of political or social theory rather than moral philosophy.[27]

To be clear, my aim is hardly to defend a narrow conception of punishment. When it comes to pretrial detention, many collateral consequences, and other hardships and harms caused by the criminal system, judges are getting it wrong—by deploying an overly formalist understanding of punishment, they fail to recognize the harms that each institution wreaks on individuals’ lives. As a result, they are refusing to provide individuals with protections against state violence and supervision.

At the same time, I think that the debate over whether a given institution or practice constitutes “punishment” may have outlived its usefulness. Attempting to stretch the definition of “punishment” might have some rhetorical appeal, but I argue that its instrumental benefit for legal scholars and attorneys might be quite limited. Moving beyond “punishment” as a frame for criminal law’s injustices may help us see more clearly what the “criminal justice system” is actually doing and what’s wrong with it.

My argument unfolds in three Sections. In Part I, I lay out the conventional definitions of punishment deployed by judges and scholars. I describe how such narrow definitions fail to capture the many harms and hardships caused by criminal legal institutions.

In Part II, I describe the common theoretical and rhetorical moves to expand the definition of “punishment” in criminal legal doctrine, scholarship, and advocacy. I argue that an expansive definition of punishment might be attractive not only as a descriptive matter, but also as an instrumental matter—it might be appealing both to attorneys seeking to make rights claims and to academics and activists seeking to characterize the harmful features of penal administration.

In Part III, I step back to argue that it might be time to move beyond punishment-centric arguments. As a descriptive matter, characterizing each objectionable feature of the criminal system as “punishment” runs headlong into theoretical objections: How should we actually define punishment if we want it to encompass an ever-increasing body of conduct and institutions? The punishment frame also risks mischaracterizing the way that criminal legal institutions manage, harm, and regulate people’s lives. And as an instrumental matter, a focus on punishment doesn’t seem to be stemming the tide of mass incarceration in courtrooms and legislatures. Ultimately, then, I argue that moving beyond a focus on what is or isn’t punishment should help us see more clearly how criminal legal institutions operate—and what it would mean to reform, transform, or abolish those institutions.

I. Defining “Punishment”

What is “punishment?” Much ink has been spilled in attempting to answer this question. Defining—and justifying—punishment has served as the foundation for much criminal legal scholarship. To be clear, I don’t think that this question should occupy such an important position in criminal legal scholarship.[28] As I’ll argue at length, the continued academic focus on the boundaries of and justifications for punishment is misplaced.[29] Nevertheless, it’s important to clarify the terms of the debate. In this Section, therefore, I briefly outline conventional approaches to defining “punishment” as reflected in mainstream penal theory and Supreme Court doctrine. These definitions fail to capture much of what criminal law does and the many ways it controls, harms, and restricts liberty.

In the U.S. legal academy, mainstream theoretical scholarship tends to focus more on why the state should punish than on what constitutes punishment in the first place.[30] Nevertheless, the definitional question has received much attention.[31] Writing almost thirty years ago, Carol Steiker observed that “[t]oday, most discussions about the nature of punishment begin, even if they do not end, with H.L.A. Hart’s five-part definition of the ‘standard’ or ‘central’ case of punishment.”[32] A review of contemporary legal scholarship that explicitly defines punishment suggests that little has changed on this front since the 1990s.[33]

In this widely applied definition, Hart contends that punishment has five essential elements:

(i)   It must involve pain or other consequences normally considered unpleasant.

(ii)   It must be for an offence against legal rules.

(iii) It must be of an actual or supposed offender for their offence.

(iv) It must be intentionally administered by human beings other than the offender.

(v) It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.[34]

While “standard usage [of ‘punishment’] might be broad enough to reach things like school suspensions, parental groundings, or vigilantism, . . . those responses are not generally within the scope of [mainstream] penal theory. . . .”[35] Instead, the public nature of punishment is essential to this conventional formulation, as are punitive intent and the role of punishment as a response to lawbreaking.[36] And, consistent with this definition, significant strands of theoretical scholarship add a focus on the expressive or communicative function of criminal punishment—its role in reinforcing social norms or expressing public condemnation for wrongdoing.[37]

Adopting a somewhat related framework, the Supreme Court has established a series of tests “to determine whether an Act of Congress is penal or regulatory in character.”[38] As in the theoretical literature, the state’s intent takes on a critical role in defining punishment.[39]  And as in the theoretical literature, the focus on intent outweighs an interest in individuals’ experience of sanctions.[40] Even though the Supreme Court has “acknowledged that for the defendant even remedial sanctions carry the sting of punishment,” that “sting” is insufficient to make state action punishment.[41] For instance, in rejecting a claim brought under the Eighth Amendment by incarcerated litigants, Judge Richard Posner emphasized intent’s centrality to determining whether state action was punishment:

The infliction of punishment is a deliberate act intended to chastise or deter. This is what the word means today; it is what it meant in the eighteenth century; Samuel Johnson’s Dictionary of the English Language (1755) defines “punishment” as “Any infliction or pain imposed in vengeance of a crime.” If a guard decided to supplement a prisoner’s official punishment by beating him, this would be punishment, and “cruel and unusual” because the Supreme Court has interpreted the term to forbid unauthorized and disproportionate, as well as barbarous, punishments. But if the guard accidentally stepped on the prisoner’s toe and broke it, this would not be punishment in anything remotely like the accepted meaning of the word, whether we consult the usage of 1791, or 1868, or 1985. Again, if a prisoner has a serious illness and the prison staff, though fully aware of the gravity of the illness, refuses to treat it and the prisoner dies, this could well be deemed, and under current case law would be deemed, the infliction of punishment. But if the staff merely misdiagnoses the illness and thinking it trivial does not treat it, and the prisoner dies, this would not be punishment in any accepted meaning of the word even if the diagnosis was negligent.[42]

Judge Posner observed that “the hard [cases] are where the behavior of the prison’s staff is somewhere in between careless and deliberate infliction of suffering.”[43] Perhaps in some cases, recklessly or knowingly causing incarcerated people to suffer might be considered a form of punishment (or at least a component of their overall carceral punishment).[44] But judges appear resistant to expanding the definition of “punishment” to encompass these hard cases when it comes to prison conditions and the conduct of prison officials.[45]

Outside of the prison conditions context, judges similarly focus on whether the state intended a given sanction or practice to constitute punishment.[46] In United States v. Salerno, the Court explained that “determin[ing] whether a restriction on liberty constitutes impermissible punishment or permissible regulation” requires “first look[ing] to legislative intent.”[47] In the absence of clear legislative intent, “the punitive/regulatory distinction turns on whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it.”[48] The Justices have conceded that it is “all but impossible to compress the distinction into a sentence or a paragraph,”[49] and that “this [definitional] problem has been extremely difficult and elusive of solution.”[50] Nevertheless, the Court in Kennedy v. Mendoza-Martinez laid out a list of seven “traditionally applied” factors to use in determining if a sanction should be considered punishment:

(1) “Whether the sanction involves an affirmative disability or restraint”;

(2) “whether it has historically been regarded as a punishment”;

(3) “whether it comes into play only on a finding of scienter”;

(4) “whether its operation will promote the traditional aims of punishment—retribution and deterrence”;

(5) “whether the behavior to which it applies is already a crime”

(6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and

(7) “whether it appears excessive in relation to the alternative purpose assigned.”[51]

All factors are “relevant to the inquiry[] and may often point in differing directions.”[52] Under the Mendoza-Martinez test, “the Court has recognized that some state actions can be so punitive that they constitute criminal punishment, regardless of the label (criminal or civil) that the legislature has placed upon them.”[53]

But “so punitive” appears to be an extremely high bar. The Court has declined to categorize pretrial detention,[54] many different financial sanctions and forfeiture arrangements,[55] and most collateral consequences of conviction as punishment.[56] While Mendoza-Martinez offered the promise of a functional or realist assessment, a legislature’s designation of a practice or sanction as punishment often comes to be dispositive.[57]

Taken together, then, these conventional definitions tell us that a great deal of harm and suffering caused by the state should be characterized as something other than punishment.[58] As a theoretical matter, such sanctions, harms, or suffering might be categorized differently.[59] Yet it’s worth asking what we sacrifice when many harms or hardships associated with the criminal system are excluded from the category of punishment.[60] More concretely, as a legal matter, this approach to punishment requires a conclusion that sanctions are regulatory, rather than criminal—that they trigger a different (and lesser) set of procedural protections and are therefore less worthy of heightened judicial scrutiny or intervention.[61] So the problem of categorization isn’t merely theoretical or semantic; it’s a problem of people’s exposure to state violence and their lack of legal protections or recourse when faced with unjust suffering.[62]

II. Expanding “Punishment”

Looking at the realities of U.S. criminal administration, it’s easy to be frustrated by many claims made by mainstream penal theory and conventional accounts of the criminal system. As we consider the messy “pathological politics” of criminal law,[63] the diverse functions that criminal justice actors perform,[64] and the troubling role of penal administration in entrenching racial and socioeconomic inequality,[65] we are left with a picture of the criminal system that feels far removed from the clarity that Hart and the Supreme Court Justices offered. Indeed, seeking clarity and unifying principles becomes difficult when “the whole American system of so-called ‘criminal justice’ has to a great degree become a moral and administrative mess—a great bloated monster driven by competing and sometimes inconsistent values, and sometimes by no values at all but simply by cruelty or indifference or institutional inertia.”[66]

Aside from questions of justification and injustice, the narrow “punishment” category is difficult to square with a realistic assessment of the criminal system. Despite the preoccupation with punishment in the literature, surprisingly little airtime is given to the actual mechanisms of punishment—to what incarceration and probation actually look like.[67] Instead, “[t]he severity of the punishment of incarceration” is generally understood in narrow terms: “Loss of Liberty x Number of Years = Punishment.”[68] And the narrow punishment frame leaves much of what the criminal system does in a peculiar netherworld: If it isn’t punishment, it’s not “criminal”—at least not as a legal matter. So what exactly is it? If much of what the criminal system does is regulatory, then much more attention needs to be paid to how the criminal system regulates.[69]

Stepping back, there are descriptive and instrumental reasons that commentators might push for a more expansive conception of punishment: descriptive accuracy, legal advocacy, and rhetorical effect. The first is descriptive, whereas the latter two are instrumental.[70] First, as a descriptive matter, commentators might conclude that conventional definitions of punishment are too narrow and fail to capture many harms associated with penal administration. Second, as an instrumental matter, advocates and academics hoping to affect judicial decision-making might want to categorize more conduct or institutions as “punishment” in order to take advantage of enhanced procedural protections or constitutional scrutiny. Third, as an instrumental matter, commentators might use the language of punishment in more of an evocative rather than literal sense in an effort to shape public opinion or to highlight the violence, brutality, or harmfulness of an institution.

A.   Against a Cramped Definition

As a descriptive matter, the move to expand the definition of “punishment” might be understood as reflecting two related impulses. The first, drawing from sociological, anthropological, and firsthand accounts, focuses on how people experience criminal legal institutions. The second, drawing from a range of critical traditions, focuses on institutions of discipline and control as a piece of a larger governance project.

1.   Experience and Effects

Conventional definitions of punishment generally focus on the person or institutions doing the punishing rather than the individuals being punished. As a result, mainstream approaches to punishment theory—and, in turn, to criminal law—tend to offer little space for consideration of how people experience state and private violence.[71] For scholars and advocates concerned about the daily realities of criminal law, then, conventional definitions of punishment often appear out of touch with the law on the ground.[72] Questions of grand theory and legislative intent predominate, deflecting attention from line-level actors and the targets of state sanctions and control. Therefore, we might understand the move to expand the category of “punishment” as reflecting a certain sociological or anthropological impulse to define punishment in a way that reflects reality rather than ideal theory.[73] Viewed through this lens, the rise of punishment-and-society scholarship stands as a counterpoint to conventional criminal legal thought grounded in moral philosophy.[74]

In 1979, criminologist Malcolm Feeley published The Process is the Punishment: Handling Cases in a Lower Criminal Court.[75] Based on extensive court watching and interviews, Feeley argued that the harms of criminal law exceeded the scope of traditional punishment. In pathbreaking work, Feeley showed that, for many people passing through New Haven, Connecticut’s criminal courts, much harm had little to do with formal sentences or even formal determinations of guilt.[76] Rather, the hassle of dealing with criminal courts—missing work, navigating the system, paying fines and fees, and spending time in or getting to court—exacted a toll on defendants, innocent and guilty alike. The criminal process itself, in Feeley’s telling, was punishment:

For every defendant sentenced to a jail term of any length, there are likely to be several others who were released from jail only after and because they pleaded guilty. For each dollar paid out in fines, a defendant is likely to have spent four or five dollars for a bondsman and an attorney. For every dollar they lose through fines, a defendant is likely to have lost several more from docked wages. For every defendant who has lost his job because of a conviction, there are probably five who have lost their jobs as a result of simply having missed work in order to appear in court. . . . When we view criminal sanctioning from this broader, functional perspective, the locus of court-imposed sanctioning shifts dramatically away from adjudication, plea bargaining, and sentencing to the earlier pretrial stages. In essence, the process itself is the punishment.[77]

It would be hard to overstate the impact of The Process is the Punishment on law-and-society scholarship generally and on academic understanding of penal administration in particular.[78] Feeley’s account of “law on the ground” and insights into people’s experiences of the legal system has influenced generations of scholars.[79] These observations regarding the sweeping harms of the criminal system (and being “court involved” or “justice involved”) are echoed in a great deal of contemporary critical criminal legal scholarship. In recent years, scholars deploying similar methods have highlighted patterns of “managerial justice” in modern misdemeanor courts;[80] immigration courts;[81] and the child welfare (family regulation) system.[82] Relatedly, critical race theory– and feminist theory–inflected work that emphasizes the experiences of marginalized groups and individuals tends to highlight the way that formal “punishment” undersells the system’s harms.[83] This insight leads to a prioritization of incarcerated people’s subjective experience of punishment.[84] But a focus on “lived experience” also suggests that people perceive many sanctions, forms of surveillance, and aspects of “justice involvement” as extending the logics of punishment.[85]

Motivated by these and other impulses,[86] a growing body of scholarship emphasizes low-level criminal courts, misdemeanors, and what Sasha Natapoff describes as the bottom of the “penal pyramid.”[87] This work invites a reckoning with harms and sanctions beyond incarceration. Where conventional criminal law classes or criminal legal scholarship might have focused on formal process and sanctions in the prosecution of serious felonies, more and more commentators focus on the more common but less stately corners of the system such as the plea bargain and the bail process.[88] As Natapoff and Sharon Dolovich argue:

[A]ny adequate conception of American criminal justice needs to push the boundaries of the standard view, to expose and encompass more of what actually happens on both the front and back ends. This reality is lived by flesh-and-blood human beings, a fact that the standard focus on formal rules and processes tends to ignore, but which must be front and center in any morally adequate understanding of the criminal system.[89]

But, importantly for our purposes, many of these new realist and critical accounts don’t dispense with the punishment frame or the language of punishment. They expand it. An increasing number of scholars argue that a prison-focused framework for thinking about criminal punishment misses much and fails to reckon with “the ‘new normal’ [of] punishment” in many jurisdictions.[90] That is, “the new normal is not brick-and-mortar prisons as the archetypal form of incarceration and punishment. While mass incarceration shows no sign of abating, new forms of non-carceral punishment are proliferating. Today, people in the criminal legal system experience an ever-growing web of carceral and non-carceral punishment.”[91] Some of these punishments (e.g., probation) already are considered “punishment” under conventional frameworks, whereas others (e.g., electronic monitoring) aren’t. In search of greater realism in criminal legal scholarship, then, commentators often argue that it’s all punishment—the distinctions are formalist and academic in the worst sense of the word.

2.   Discipline and Control

Where a traditional punishment frame might be understood as grounded in certain flavors of moral philosophy, expansive conceptions of punishment often reflect claims associated with critical theory. That is, a drive to understand “punishment” less as reflective of wrongdoing or even risk[92] and more as an exercise of power and control finds purchase in a number of critical traditions. Critical accounts of criminal punishment historically have emphasized the role of penal institutions in preserving hierarchy, entrenching ideology, or advancing the interests of the ruling class and socially dominant groups.[93] Such accounts, then, depart from the Hartian framework focused on wrongs and legitimate responses to wrongs.[94] Instead, many critical accounts suggest that punishment serves other ends and therefore tends to be less clearly bounded.

Consider the literature on criminal law as a mechanism of social control.[95] If we understand policing and prisons as serving a primary logic of social control[96]—of managing populations—then punishment isn’t necessarily a clearly defined sanction responsive to a specific unlawful act.[97] Instead, punishment might be more nebulous, ongoing, or ubiquitous: a component of the state’s general exercise of power, rather than a specific sanction that would satisfy the Court’s seven-factor test or Hart’s five-factor one. If “punishment” is yet another manifestation of social control (like workplace or classroom discipline),[98] then it’s necessarily harder to put four walls around the concept.[99]

Indeed, the move to expand the “punishment” category might find its clearest support in the work of Michel Foucault. Foucault famously argued that, over time, the model of “punishment” in many societies shifted from torture and displays of corporal punishment to more ubiquitous and less visibly grotesque forms of discipline.[100] Foucault’s work on “the punitive society” relied on a vision of discipline and punishment as diffuse.[101] He refers to a “carceral continuum”[102] and a “carceral network,”[103] suggesting that structures of penality extend “well beyond the frontiers of criminal law, constitut[ing] what one might call the carceral archipelago.”[104] Such an understanding supports accounts of the “prison beyond the prison”[105]—of a larger “shadow carceral state” that monitors, controls, and excludes an increasing number of people in the United States.[106] If that were our vision or understanding of contemporary penal administration, then it would be difficult to defend a narrow and rigid definition of punishment.[107]

To be clear, my claim isn’t that attorneys characterizing the immigration consequences of a client’s plea agreement as “punishment” are Foucauldians.[108] Indeed, a significant amount of the commentary that seeks to expand the punishment category reflects an approach clearly embedded in a liberal legal framework.[109] Rather, I hope to suggest that the move to expand the punishment category finds purchase in a broader theoretical literature. That literature might help us understand the move—its promises and its limitations—even if that literature doesn’t explicitly motivate the move itself.

B.   Against Unjust Institutions

As an instrumental or practical matter, there might be legal and rhetorical benefits to expanding the “punishment” category. From a legal advocacy perspective, characterizing a sanction or restriction on liberty as “punishment” might trigger greater procedural protections or invite new avenues for criminal defendants or civil rights plaintiffs. From a rhetorical perspective, characterizing a given practice as “punishment” might attract public sympathy for victims of unjust policies or might advance a narrative of unduly harsh institutions.

1.   Legal Claims

As noted above, “punishment” functions as a key category in constitutional litigation.[110] The line between criminal and civil rests on a determination of whether a given sanction constitutes punishment.[111] And, the messiness of that distinction has produced a confounding body of case law. During the Warren Court’s “rights revolution” in the 1960s, defendants were afforded greater legal rights (or remedies) in criminal court.[112] In the following decades, “litigation regarding the application of criminal procedural protections to putatively civil state actions began to increase . . . and has virtually exploded in the [1980s and 1990s].”[113] As a result, the significance of the civil–criminal distinction grew.[114] For a person subject to a state sanction, being able to characterize that sanction as “punishment” might trigger a range of constitutional protections. In contrast, the government increasingly had a vested interest in avoiding the “punishment” label.

For decades, then, criminal defendants and civil rights plaintiffs have sought to characterize a broader universe of harms and restrictions on liberty as “punishment.” And legal scholars have made a parallel set of moves, constructing a theoretical and doctrinal scaffolding to support both a reconceptualization of punishment and a path to more procedural protections.[115] In this literature, the definitional move has a clear normative dimension: The “focus is on punishment for the purposes of procedure.”[116] Scholars observe that “[n]on-carceral punishments continue to escape traditional constitutional scrutiny. As a result, the disenfranchisement of people convicted of crimes persists and further entrenches the economic, gender, and racial inequity that has long been part of the fabric of the criminal legal system.”[117]

Commentators have focused in particular on collateral consequences, arguing that they should be considered “punishment” triggering Ex Post Facto Clause and Eighth Amendment protections.[118] Further, some scholars and the American Bar Association (ABA)’s Task Force on Collateral Sanctions and Discretionary Disqualification of Convicted Persons have argued that collateral consequences—as a form of punishment—should be formally factored into sentencing determinations.[119] Scholars have argued that pretrial detention and immigration detention should be treated as “punishment” for purposes of constitutional analysis.[120] Academics and advocates have made similar claims about forfeiture schemes and monetary sanctions.[121] And more recent scholarship has extended these claims to electronic monitoring and other forms of pre- and postconviction “rights violations.”[122] In short, a scholarly “consensus” has formed in favor of classifying more sanctions as “punishment” as a means of triggering greater legal protections.[123] But that scholarly chorus hasn’t found a receptive audience in the judiciary, as judges routinely reject arguments for an expansive definition of punishment.[124]

2.   Rhetorical Frames

Regardless of what definition of “punishment” one adopts as a legal or theoretical matter, the word carries with it a social or cultural meaning.[125] By referring to a practice as “punishment,” a speaker might be making a specific legal claim (e.g., “pretrial detention is punishment, so I am entitled to procedural protections guaranteed by the Constitution if I am detained pretrial”). But the punishment frame and the more expansive use of “punishment” as a label does work beyond the courtroom. “[T]he language of punishment conveys the pain and frustration” that restrictions on liberty cause.[126] It might operate as a shorthand for hardships experienced at the hands of others (state and private actors alike).

In this respect, the language of “punishment” needn’t necessarily rest on any particular definition or theoretical framework. It might reflect an advocacy strategy, a rhetorical impulse, or a desire to capture an audience’s attention.[127] Definitions might be slippery or absent altogether. Nevertheless, punishment used as a rhetorical device interestingly often invokes features of the more conventional approaches or definitions—namely, intentionality—and the implication that someone is doing the punishing; the suffering is no accident. That frame (i.e., that a knowing or purposeful punisher is doing the punishing) is reflected in a significant amount of critical criminal law discourse.[128] For example, many characterizations of the criminal system as a tool of oppression and subordination rely on a claim that the institutions are being weaponized as a part of a larger ideological project.[129] This inclination strikes me as driving radical commentators’ use of the “criminal punishment system” as a label to describe the U.S. model of penal administration.[130]

Critics often “refer . . . to ‘the criminal punishment system,’ believing that ‘justice’ has little to do with American courts and prisons.”[131] Abolitionist organizers Rachel Foran, Mariame Kaba, and Katy Naples-Mitchell refer to the “criminal punishment system” as “a death-making system of racialized social control,”[132] suggesting that the system’s unjust harms are features, not bugs.[133] To this end, they defend their decision to use the language of “punishment” rather than the language of “justice”:

Like many others pursuing abolition of the prison industrial complex, . . . we instead generally use the term “criminal punishment system.” Some instead use phrases like “criminal injustice system” to capture the same idea. Others may use “criminal legal system,” which similarly describes the mechanism of the system (passage and enforcement of criminal laws) without imbuing it with an undeserved positive connotation that distracts from its real-world objectives and consequences. All of these terminology choices recognize that the phrase “criminal justice” cloaks the system with false legitimacy by framing it as “just” or “justice oriented.”[134]

In other words, “punishment” doesn’t necessarily have specific content or a set of requirements; rather, it stands in opposition to other institutional goals or objectives. Unlike in conventional penal theory, “punishment” in this context is neither defined as desirable (as it might be for retributivists) or necessary (as it might be for a range of different utilitarians). The characterization of an act, an institution, or a sort of sanction as “punishment” operates as a critique—a way of identifying it as objectionable, illegitimate, unjust, or cruel.[135]

III. Beyond “Punishment”

I’ve argued that we might understand the case for expanding the category of “punishment” as resting on two claims—a descriptive claim (i.e., that a given practice is punishment)[136] and an instrumental claim (i.e., that characterizing a given practice as punishment will help achieve some end).[137] I remain sympathetic to both claims, but I am increasingly unconvinced that these claims live up to their initial promise. Therefore, in this Section, I argue that there are two primary problems with trying to recast all of the harms or hardships caused by the criminal system as punishment. First, the arguments don’t quite get it right descriptively: I worry that they miscast and perhaps actually undersell the harms of the criminal system. At the very least, the language of “punishment” fails to describe much of what the criminal system actually does. Second, the arguments aren’t necessarily successful as an instrumental matter: They don’t appear to be achieving much as a frame for legal advocacy or for shaping public opinion.

To reiterate, though, I don’t mean to defend a narrow definition of punishment. Rather, my claim in this Section is that understanding and critiquing the contemporary institutions and social role of the U.S. criminal system requires moving beyond the vocabulary of “punishment.” Instead of seeking to expand the concept of punishment itself, then, I argue that academics and activists should continue to examine and critique criminal institutions as sites of objectionable governance, not just sites of “punishment.”[138]

A.   Descriptive Inadequacy

Conventional definitions of punishment and mainstream penal theory often describe a criminal system that looks very different than the one that exists. It’s easy to see why commentators—impatient with ideal theory—might seek to offer an alternative account. And, by deploying the language of “punishment,” academics, advocates, and activists highlight the clear limitations of the conventional approach. If we are concerned with punishment, then how can we possibly engage in such a narrow conversation? How can we ignore collateral consequences, the penal system’s interactions with private institutions, or other features of the “shadow carceral state”[139] or “carceral archipelago”?[140]

At its best, then, the turn to a capacious definition or use of “punishment” reflects a realist approach. “Punishment is not just an act that is carried out, it is an unfolding process whose effects on the person who is its object must be monitored.”[141] Trying to fit more practices and institutions into the punishment category might capture more accurately the broad spectrum of punitive logics in society.[142]

That said, I’m not sure that “punishment” does the trick descriptively. And I worry that there might be unintended consequences of trying to fit these arguments or accounts into a punishment framework. Even if many commentators making this expansive move reject the conventional definitions, it is worth noting the degree to which commentators still may—explicitly or implicitly—traffic in arguments that rely on those conventional definitions and conceptions of punishment.[143]

For example, one of the punishment frame’s limitations is that it accepts—or at least risks accepting—an unduly narrow vision of criminal law and the criminal system.[144] Conventional scholarly treatments of criminal law tend to focus on punishment, on the purposes of punishment, and on criminal law as reflecting either moral or utilitarian determinations about how best to respond to harm and to manage risk.[145] This vision tends to regard the criminal system as transactional: These determinations are made via individual criminal prosecutions under individual criminal statutes.[146] Individual penal bureaucrats make individual determinations focused on individual wrongdoing or culpability.[147]

To be clear, I hardly mean to suggest that individual criminal statutes or individual criminal prosecutions do not serve as the backbone of the criminal system.[148] Of course, they serve as the base or the building blocks for the criminal system as constituted.[149]

But this sort of transactional account misses much.[150] Criminal justice actors (however defined) actually do an enormous amount of work that is very different from conventional policing, prosecution, or punishment.[151] A growing body of scholarship emphasizes that much police work hardly resembles popular or media portrayals of policing.[152] As policing scholar Barry Friedman argues, “this image of cops primarily as crimefighters is not really true.”[153] Contrary to what policing scholar Shima Baradaran Baughman describes as the “mythology of police,”

[d]ay-to-day policing has remarkably little to do with crime, despite public perception to the contrary. The vast majority of police time is spent on noncriminal functions such as health, transportation, and public order. Some estimates put public order (non-criminal functions) at ninety percent of police time. A recent survey of several cities who self-reported time spent by police revealed that only four percent of police time was spent working on violent crime. The bulk of police time was spent on calls about noncriminal matters (around thirty-seven percent), with traffic concerns taking up the next biggest chunk of police time at fifteen percent. . . . Indeed, one set of scholars found that the average officer spent one hour per week responding to crimes in progress.[154]

And such an account doesn’t even address claims by critical commentators who argue that police are engaged in more nefarious projects—from enforcing the boundaries of residential segregation[155] to protecting the interests of the wealthy.[156] None of these accounts of policing, whether grounded in fundamental critiques or simply in quotidian observations, suggest that police are primarily focused on “punishment.”

Think back to the statistics at the beginning of the Article.[157] The vast majority of people who are in contact with the criminal system are not actually people in the process of being prosecuted or formally punished: They’re not necessarily “defendants.” Instead, they’re people who have some contact with criminal justice actors or criminal courts.[158]

So, conventional punishment-centric accounts of criminal law and the criminal system fail to capture much of what’s going on day to day. Regardless of whether scholars’ or judges’ definition of “punishment” is correct, it’s baffling to say that institutions or sanctions that aren’t punishment or punitive aren’t criminal. Collateral consequences, pretrial detention, civil asset forfeiture, and electronic monitoring—all institutions that aren’t generally classified by courts as “punishment”—clearly are associated with the criminal system as a regulatory regime. On the flipside, though, just because a practice or harm is associated with the criminal system (or with some other quasi-criminal institution), it’s not clear to me that it makes sense to describe it as “punishment.” In short, both conventional and critical uses of the punishment frame have significant limitations.

By way of example, consider the experiences of people in heavily policed communities who have frequent and unpleasant police interactions.[159] Looking to the experiences of race-class subordinated populations, some commentators argue that overpolicing is punishment in and of itself.[160] Under this logic, people who are frequently stopped, frisked, or hassled by police are punished.[161] Certainly, a violent or unpleasant interaction on the street or a stop that doesn’t lead to an arrest looks very different from a period of incarceration imposed by a judge at sentencing. But, these sorts of routine interactions—and perhaps even the very routinization of those interactions[162]—can be traumatic and can cause real harm.[163] Of course, any such interaction can lead to violence or police use of force.[164] Police kill over a hundred people a year in interactions that start as traffic stops.[165] Studies suggest that unpleasant interactions with police (even ones that don’t end in violence or arrest) can harm people’s sense of self and their understanding of their status and community.[166] Indeed, one recent study in Hillsborough County, Florida, found that people who were eligible to vote were less likely to do so after they had been subject to a police traffic stop.[167]

In short, if “harm” were synonymous with punishment—if imposition of some negative consequences were the hallmark of a “punishment” regime—there might be good reason to accept claims about hyperpolicing as punishment.

But conceiving of aggressive policing as punishment may mischaracterize the problem. “Punishment” as a frame suggests a focus on individual wrongdoing or a desire to impose some sanction on individuals because of their conduct.[168] Maybe that’s what is going on in some situations. But this frame seems different from an alternative frame or explanation—that the hyperpolicing of race-class subordinated communities (or other marginalized communities) reflects a style of population management, social control, or risk management.[169]

Interestingly, this alternative frame is fairly consistent with both radical critiques of policing and more conservative defenses of intrusive police tactics. When we look at a spectrum of policing from harsher “broken windows policing” to ostensibly kinder and gentler models of “community policing,” we might conclude that police aren’t necessarily focused on individual wrongdoing or on imposing some sort of burden on people (traditional theoretical hallmarks of “punishment”).[170] Rather, policing might be about message sending and control—of people and of physical spaces. It might make more sense to understand policing behavior such as arrests as “a regulatory tool—a means of monitoring, ordering, and tracking individuals. The aim of this type of regulation can be quite distinct from certain criminal law concerns—adjudicating guilt or innocence, maintaining law and order, deterring crime, and meting out punishment.”[171] Therefore, conceptualizing policing or police stops as punishment actually seems to misstate what’s going on—the different possible logics of policing and the different ways in which policing might affect communities.

To generalize for a moment, consider four possible formulations of punishment:

(1) Punishment = Harm + Intent + Perception

(2) Punishment = Harm + Intent

(3) Punishment = Harm + Perception

(4) Punishment = Harm

“Intent” here refers to the intentions of the actors or institutions doing the punishing—do they understand their actions as “punishment”? (Recall that the Supreme Court concluded that legislative intent was the most important question.)[172] “Perception” refers to the perception of the person being punished—do they understand what’s happening to them as “punishment”?[173] (Recall that the Supreme Court concluded that it matters “whether [a sanction] has historically been regarded as a punishment.”)[174] Harm also might be termed “suffering,”[175] but whatever word we use, I refer to some unwanted or objectionable condition experienced by a person.[176]

To be clear, the formulations above are different than the classic ones discussed in Part I. But these possible formulations capture a lot of what’s happening in the conventional accounts, and they might be helpful in understanding the arguments for a more capacious definition of punishment. My aim is to offer different versions of what people, both academics and nonacademics alike, might mean when they refer to “punishment.” As I’ve emphasized throughout, my goal in this Article is not to offer or endorse a correct definition of punishment. My goal is to try to understand what work the “punishment” label (and its different definitions) might be doing as both a descriptive and an instrumental matter.[177]

Formulation (1) is the narrowest definition. In order for conduct to constitute punishment: (a) it must cause harm; (b) the actor or institution causing that harm must intend to cause the harm as a means of responding to wrongdoing, harm, or risk; and (c) that harm must be understood as punishment—that is, the intent must be apparent. There’s an important follow-up question regarding (c): whether what matters is the punishee’s perception or society’s at large.[178] Nevertheless, the basic formulation stands either way. Harm isn’t sufficient, nor is the state actor’s intention to send a message by causing harm. The causing of harm (or depriving of liberty) must also be understood by at least some other person or people as “punishment.”

Formulations (2) and (3) are slightly broader than Formulation (1) because punishment only requires two elements. But, critically, both require something more than harm itself for some conduct to be considered punishment. For (2), that something else is intent on the part of the punisher. For (3), that something else is perception. Once again, this could be the perception of the punishee, society at large, or both.

Formulation (4) is the broadest by far. This formulation makes punishment and harm (or suffering, if you prefer)[179] synonymous. Were this our definition, we’d be unconcerned with intent or how people perceive the nature of the harm. The only question would be whether something was harmful—or, to use a similar formulation, whether a person had suffered some hardship. Whatever one thinks of Formulations (1)–(3) or the more stringent definitions discussed in Part I, Formulation (4) simply isn’t workable. Harm and suffering are ubiquitous, and identifying the source or cause can be tricky.[180] Indeed, this formulation suggests that an accident that causes injury constitutes punishment.

That Formulation (4) isn’t workable, though, doesn’t mean that the other three Formulations—or Hart’s formulation or other traditional ones—are the right definition for punishment. Instead, I suggest that appreciating the messiness of “punishment” as a category should help us appreciate the range of different concepts that “punishment” is used to describe. Indeed, Formulation (4) may go the furthest in helping to show why “punishment” does not do the necessary work for those of us concerned more about effects than intent. Stripping intent or broader social meaning from the definition leaves us with a wildly overinclusive understanding of punishment (i.e., punishment = harm). But focusing on intent or social meaning fails to recognize the variety of ways that individuals or communities might experience harm and suffering.[181]

Put differently, I worry that “punishment” becomes an ill-fitting label for a range of phenomena that are deeply concerning but concerning for different reasons. And an effort to jam the square pegs of estrangement, marginalization, or subordination into the round hole of “punishment” might shortchange each of those experiences or phenomena.

Indeed, while some of the turn to “punishment” might reflect an affinity for critical theory,[182] I’m not sure that move makes sense on its own terms. Foucault’s account of the “punitive society” and the expanse of disciplinary structures emphasizes the need to tease apart those structures and logics.[183] He contends that “the notion of punishment” reflects “four major forms of punitive tactics”: (1) “to exclude”; (2) “to organize a redemption, impose compensation”; (3) “to mark”; and (4) “to confine.”[184] Add to that “three models of actual punishment”: “infamy,” “talion” (essentially a retributive eye-for-an-eye model), and “slavery.”[185] And, as a part of “the great carceral continuum, which . . . extends without interruption from the smallest coercions to the longest penal detentions,”[186] “[a]ll the institutions of supervision—homes, poorhouses, and so on” might “play this role of everyday and marginalizing control.”[187]

Put differently, I take the important insight of the literatures on discipline and social control to be that the institutions of formal punishment and the penal system aren’t unique—that they are deeply embedded in larger ideologies and cultures of exclusion, subordination, and so forth.[188] That insight doesn’t necessarily tell us that each disciplinary structure is engaged in punishment as a formal, legal matter;[189] if anything, it’s quite the opposite. This insight and literature invite us to break down these distinctions and ask whether punishment is a meaningful category at all, or whether it obscures more than it illuminates.[190]

I see this move reflected in sociolegal work that focuses on the experience of people—particularly people from race-class subordinated populations—as they interact with criminal legal institutions. For example, legal sociologist Monica Bell describes the experience of young people (particularly young Black people) dealing with policing as one of “legal estrangement.”[191] Their shared sense of victimization at the hands of police isn’t understood as punishment; rather, it’s understood as a sort of collective alienation from legal and social institutions, attributable in large part to broader structural forces.[192]

Similarly, criminologists Nicole Kaufman, Joshua Kaiser, and Cesraéa Rumpf push towards a theoretical approach to the penal state that explicitly widens the focus beyond punishment.[193] “Rather than asking how the penal state punishes,” Kaufman, Kaiser, and Rumpf “ask how it controls.”[194] They rightly note that moving beyond punishment takes the emphasis off of intentionality and “facilitates a more nuanced understanding of how the penal state operates in intentional and unintentional ways.”[195] Instead of focusing on the punishment–non-punishment distinction, then, Kaufman, Kaiser, and Rumpf identify “four modalities through which the state controls criminalized people’s lives.”[196] They offer “expressive punishment,” “interventionist penal control,” “covert penal control,” and “negligent penal control” as frameworks for understanding how the “penal state” operates.[197]

[E]xpressive punishment refers to the ways in which penal officials operate legally, at the surface of public knowledge, and through committed acts. We juxtapose expressive punishment as a modality with three additional modalities. . . . : interventionist penal control functions through deep, extralegal interventions into the lives of criminalized people; covert penal control operates in a submerged fashion beyond expected, formalized sentences; and negligent penal control occurs when the state withholds action that is needed to protect the well-being of people for whom it is responsible.[198]

Kaufman, Kaiser, and Rumpf concede that these categories “may not be exhaustive.”[199] And we might well ask whether these are the right categories or “modalities” to draw, or how we might go about drawing boundaries among them.[200] Nevertheless, the move to “conceptualize penal control more broadly than punishment” strikes me as an important one.[201]

B.   Instrumental Inadequacy

The punishment frame is intuitively appealing not simply because it expands a cramped, formalist definition of punishment. It also offers instrumental advantages for commentators concerned about contemporary U.S. criminal policy—both as a vehicle for invoking legal protections against punishment,[202] and as a rhetorical vehicle for highlighting the cruelty and injustice of the system.[203] Nevertheless, in this Section, I argue that the punishment frame doesn’t actually live up to its instrumental promise, as a legal or rhetorical matter.

1.   Legal Limitations

As discussed above, judges have generally failed to accept these expansive understandings of punishment.[204] Scholars have repeatedly critiqued judges’ efforts to distinguish between “civil” and “criminal” and between “punishment” and “regulation.”[205] To be clear, I largely agree with those critiques and have offered some myself. The line that judges draw (and particularly that Supreme Court Justices have drawn) reflects a flawed formalism, and the conception of punishment they generally adopt is overly narrow. That said, to the extent legal scholars are making legal arguments, it is important to consider those arguments on their own terms—to consider whether they’re likely to be successful in persuading legal audiences (judges, and so forth).[206]

Reflecting on the unsuccessful legal arguments discussed in Part II,[207] it’s worth noting two distinct reasons punishment-focused legal arguments may have significant limitations. First, judges generally have refused to accept claims that pretrial detention, collateral consequences, and so forth actually constitute punishment.[208] A few courts have been receptive to Ex Post Facto Clause arguments when presented with extremely burdensome requirements for people convicted of sex offenses.[209] Nevertheless, these cases appear to be outliers rather than reflections of a broader willingness to assess the hardships that collateral consequences might impose.[210] Absent a dramatic change in judicial reasoning or Court (or courts’) composition, there’s little reason to think that we are witnessing a sea change.[211] Or, put slightly differently, I am skeptical that there’s a new argument as to why one of these institutions constitutes punishment that will change the minds of judges who have embraced a formalist or narrow definition of punishment.[212] A change in outcomes would require different judges (or different judicial approaches), not different arguments or advocacy strategies.[213]

Second, even if judges were to change course and accept a broader definition of punishment, it’s not clear how much that would matter.[214] Classifying a harm or a restriction on liberty as “punishment” isn’t an end in and of itself. Rather, the point of seeking to characterize, say, a collateral consequence as “punishment” is to trigger additional constitutional scrutiny or to alter other legal analyses.[215] So, in order for the legal classification of something as punishment to matter, the follow-up legal analysis would need to lead to a desired result.[216]

By way of example, think back to the discussion of collateral consequences[217] and consider the disenfranchisement of people with felony convictions. An attorney might want to characterize disenfranchisement as punishment either because (1) they want to raise an Eighth Amendment argument (i.e., that disenfranchisement is cruel and unusual or that disenfranchisement plus the formal sentence amounts to excessive punishment, such that it fails a proportionality analysis) or (2) they want the sentencing judge to factor disenfranchisement into the sentencing determination, perhaps arriving at a shorter carceral or probationary sentence in recognition of the additional harm of disenfranchisement.

The first possibility—that judges will undergo a thorough review of these newly conceived “punishments”—strikes me as quite unlikely. It’s extremely rare for judges to hold that a form of punishment is “cruel and unusual.”[218] To the extent that judges have rejected certain collateral consequences as unduly burdensome, they often have done so using alternative constitutional frameworks that often don’t rely on concluding that a restriction constitutes punishment.[219] For example, in Packingham v. North Carolina, the Supreme Court held that a statute that prohibited people convicted of sex offenses from accessing social media websites violated the First Amendment.[220] The Court didn’t rely on any analysis involving punishment; instead, the Justices treated the statute as a prohibition on speech that went too far in “serv[ing] [the State’s] preventative purpose of keeping convicted sex offenders away from vulnerable victims.”[221] Indeed, Kate Weisburd has argued that categorizing a sanction or “rights violation” as punishment in some instances actually may reduce the likelihood of success because the Court sometimes appears to recognize a “punishment exemption” to the Constitution.[222]

To the extent that advocates hope to raise Eighth Amendment proportionality claims by characterizing collateral consequences as punishment, the odds appear even longer.[223] Proportionality challenges for criminal sentences have rarely succeeded.[224] Such challenges have only been successful in a handful of cases—in the death penalty context or when addressing the punishment of juveniles or other particularly vulnerable defendants.[225] And it’s important to recognize that the Supreme Court Justices who advocated a more expansive version of proportionality review have died or retired.[226] Indeed, the Supreme Court recently dealt another blow to expansive readings of the Eighth Amendment in City ofGrants Pass v. Johnson, rejecting a claim by homeless people challenging a statute that criminalized sleeping in public.[227] So there is little reason to think these sorts of constitutional claims stand much chance of success.

What about factoring collateral consequences into the sentencing determination? Recall that this approach has been proposed by numerous academics and has been endorsed by the ABA’s Task Force on Collateral Sanctions and Discretionary Disqualification of Convicted Persons.[228] And, for what it’s worth, I’ve argued on behalf of this approach in the past.[229] But again, even if judges were to adopt this approach, I’m not sure how much work it actually would do.[230] There are an enormous number of formal collateral consequences at the federal, state, and local levels.[231] And that’s without considering the vast array of informal collateral consequences that a person with a criminal record will face.[232]

Arguing that judges should consider these collateral consequences strikes me as defensible and admirable. But it’s also like saying that judges should consider the realities of racial or socioeconomic inequality that will shape a defendant’s experience of reentry. Judges should consider those conditions. But who’s to say that they don’t already? And who’s to say that it would make a difference—or which way those considerations would cut for individual judges? Put differently, when judges take guilty pleas or enter sentences, they must realize that they are setting in motion a chain of events that will lead to state supervision, restrictions on liberty, and many hardships for a defendant.[233] For example, a judge who sentences a defendant with no family support, no meaningful work experience, and no high school degree must realize that the person in their courtroom will probably face financial difficulties post-release.[234] Judges are repeat players, after all. As we recognize a broader universe of collateral consequences and the vast array of challenges that people with criminal records face, it is less clear what it actually would look like to have judges formally consider all of those consequences and whether that consideration would amount to a major departure from the status quo—a sentence against the backdrop of judges’ sense of the gestalt.

It’s also possible that one benefit of the ABA’s recommended sentencing procedure (at least for defendants and defense attorneys) is that this approach would force judges to make a record of their considerations.[235] And the failure to account for collateral consequences and other harms related to the criminal system sufficiently might then be grounds for appeal. That makes sense as far as it goes, but like similar requirements in advisory sentencing guidelines schemes, I’m skeptical that such requirements would materially alter sentencing outcomes. And if appeals simply yielded remands and resentencing, this requirement might well morph into a sort of rote recitation of collateral consequences.[236]

So maybe what scholars are really arguing is that judges should sentence more leniently because of their knowledge of how a record affects a person. Once again, I agree. But I don’t know that characterizing any of these hardships as “punishment” is either necessary or sufficient to do the real work—rethinking the harms of court involvement and the need to mitigate those harms in the interests of justice. Indeed, while Jack Chin, the reporter for the ABA’s Taskforce, hails some recent judicial opinions that have recognized the punitive dimensions of collateral consequences, he also notes that the important work of addressing collateral consequences requires broader legislative action.[237]

To be clear, I’m not suggesting that attorneys shouldn’t raise “X as punishment” arguments. The nature of legal advocacy is that you make the best argument that you can, and the menu—particularly for criminal defendants and civil rights plaintiffs—is often quite limited. I’m also not arguing that these arguments are frivolous or will do harm in individual cases. And, of course, all it takes is the right court on the right day for an “off the wall” argument to become a successful one.

Rather, my focus is on academic analysis—a space where commentators don’t find themselves with an ethical duty to represent a client. My arguments here are for those of us studying and investigating the institutions of the criminal system in hopes of addressing injustice. I have become increasingly skeptical of the punishment frame as a pragmatic vehicle to bolster advocacy or to make doctrinal inroads.[238] Maybe it’s time to explore other avenues or alternative legal frameworks.[239]

2.   Rhetorical Limitations

I am least certain of my claim here, so I will lead with a question, rather than a conclusion: Does characterizing more institutions and conduct as “punishment” lead to a change in political consciousness, if not policy? To the extent that the punishment frame is deployed in service of a given project, then this strikes me as the critical question. And it’s ultimately an empirical question.[240] I must say that I have my doubts that the answer is “yes”—or at least that I have my doubts at this point. That is, I can imagine that there may have been real benefit in expanding the rhetoric of punishment. But I’m skeptical that it still is a valuable frame for critique. At the very least, I think it’s worth considering what we might lose by retaining “punishment” as the frame or vocabulary for describing the criminal system or features of it that we might find objectionable.

By way of comparison, consider the move to describe mass incarceration and contemporary U.S. criminal policy as a “new Jim Crow.” Popularized by Michelle Alexander in her bestselling book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, the analogy emphasizes the way that contemporary penal policy leads to the marginalization, subordination, and disenfranchisement of many Black people.[241] Alexander (and others who deployed the analogy)[242] argued that mass incarceration did the same sort of work of racial subordination as the old Jim Crow.[243] The analogy signals that criminal policy is properly understood as a racial justice issue and that reversing the course of mass incarceration—like ending Jim Crow—should be an urgent priority for anyone who cares about racial equality.

Academic critics of the Jim Crow analogy emphasized its descriptive limits.[244] In a widely cited review, James Forman, Jr. argued that “the analogy generates an incomplete account of mass incarceration—one in which most prisoners are drug offenders, violent crime and its victims merit only passing mention, and white prisoners are largely invisible.”[245] According to critics, Alexander’s book (and the analogy, more broadly) “overstates the role of the War on Drugs and understates the role of violent crime”;[246] “overemphasizes the federal system when, in fact, states incarcerate vastly more individuals than the federal government”;[247] “paints race in the United States as [B]lack and white, understating the criminal system’s impact on Latin[es] and other racial and ethnic groups”;[248] “focuses on the role of white conservatives and understates the role of liberals and [B]lack lawyers, lawmakers, and activists in constructing the apparatus of mass incarceration”;[249] and “stretches the historical analogy to Jim Crow.”[250]

But critics also argued that the Jim Crow analogy—because of its descriptive shortcomings—should worry criminal justice reformers. That is, critics claimed that descriptive inaccuracy wasn’t just a problem as an academic matter. Rather, they suggested that these descriptive problems would undercut the instrumental value of the analogy—and perhaps also undercut efforts to reform or transform the criminal system. As Forman puts it, “the analogy directs our attention away from features of crime and punishment in America that require our attention if we are to understand mass incarceration in all of its dimensions.”[251] For example, if we embrace a narrative where the real problem with U.S. criminal policy is the harsh and racially disparate enforcement of drug crime, then we risk inviting a narrow solution that accepts—and perhaps even legitimates—other objectionable features of the system.[252] “[C]riminal justice reform’s first step—relief for nonviolent drug offenders—could easily become its last.”[253]

From an instrumental or advocacy standpoint, it’s not clear who was right when it came to the New Jim Crow analogy. At first blush, I’m tempted to say that Alexander and others who deployed the analogy got the better of the argument. The book attracted an enormous audience, introducing many people to the injustices of the criminal system.[254] It “won awards and was a ‘catalyst’ in the NAACP’s 2011 decision to call for an end to the war on drugs.”[255] Scholar and activist Cornel West went so far as to call Alexander’s book “the secular bible for a new social movement in early twenty-first century America.”[256] By framing the issue in a language of moral clarity[257] and recasting criminal policy in more broadly resonant racial justice terms, Alexander bolstered advocacy against mass incarceration.[258]

Indeed, despite his criticisms, Forman notes that the book (and analogy) “played a crucial role in providing advocates with a framework for understanding, and a rhetoric for criticizing, the War on Drugs.”[259] He describes the role that The New Jim Crow played in the Washington D.C. City Council’s 2014 decision to decriminalize marijuana possession: “[V]arious witnesses [at hearings] cit[ed] The New Jim Crow and one city council member explain[ed] that the book had ‘compelled me to be heavily engaged in this conversation.’”[260] That is, even if the academic critiques have merit, the New Jim Crow frame seems to have done tremendous work in changing the national conversation.[261]

That said, prison and jail populations—after a brief downturn—continue to hover at a level only slightly lower than they did prior to The New Jim Crow’s publication.[262] Legislators continue to pass new criminal laws, and police budgets continue to grow. Judges have hardly changed their approach.[263] Academics, activists, and voters from across the political spectrum continue to support criminal law and incarceration as the response to social problems or conduct they see as inexcusable.[264] Despite dramatic changes in drug policy (most notably the increasing legalization of marijuana), legislators continue to pass criminal statutes that extend the logic of the War on Drugs.[265] All of which is to say that mass incarceration doesn’t seem to be going anywhere anytime soon.[266]

The continued support for criminal law as the tool to reach the “real bad guys” even among carceral-state critics suggests that Forman and others weren’t wrong to be concerned about the scope of reform that the analogy invited.[267] Further, despite the dramatic mobilization of racial justice advocacy surrounding both mass incarceration and police violence against Black people, backlash and revanchism seem to have taken hold in many debates about the role of police in society. But, of course, my answer might have been different five years ago, and it might be different in five years; judging the success of an argument or a movement necessarily depends on the time horizon and historical vantage point.[268]

Returning to the question at hand, it’s difficult to assess whether the “punishment” frame has been successful or to predict whether it will be successful. Drawing such a conclusion would require us to answer a difficult question of what constitutes success (specific policies, shifts in public opinion, grass roots mobilization, etc.) in addition to similar questions about the timeline or time horizon. To be clear, then, I’m not making a claim that the language of punishment “has failed” or “will fail” as a rhetorical matter.

Yet I find myself drawn to a claim similar to Forman’s in the New Jim Crow context: Might a rhetorically appealing but descriptively imprecise frame backfire?[269] Might embracing the language of punishment—like the language of the New Jim Crow—invite an overemphasis on institutional intent? It’s hard to say. At the very least, though, I think it’s cause for concern or reexamination.

Much as the New Jim Crow frame risked understating the role of unintended consequences or (as in Forman’s telling) the role of progressive Black activists in the construction of racially unjust institutions,[270] so too might the language of punishment keep our eyes fixed on tough-on-crime rhetoric. Looking for the mustache-twirling villains in our narrative might allow us to miss the ways that reformers or well-intentioned actors might come to craft policies and institutions that do harm or have odious consequences.[271] To be clear, there certainly are plenty of examples of outright racism or situations where unjust consequences are hardly unintended; in such cases, inequality becomes a feature, not a bug.[272] As radical critics argue, “the system is working the way it is supposed to” when it seems more focused on preserving hierarchy than on guilt and innocence.[273] Yet a focus on explicitly tough-on-crime rhetoric or a frame that treats punishment as criminal legal institutions’ overarching goal makes the answers seem easier than they actually are.[274]

Perhaps counterintuitively, this frame also may invite a sort of vicious cycle: If the problem is punishment, then the answer is to shift to “nonpunitive” alternatives. But as we have seen, when activists and academics come to appreciate the harms or unintended consequences of those alternatives, the response is often to recast those alternatives—diversion programs, “problem solving” courts, and pretrial services or supervision—as punitive.[275]

Maybe that sort of cycle is inevitable. To effect change, advocates need to convince people that those changes will work, or at least that they will improve the status quo.[276] At the same time, for advocates hoping for a dramatic departure from the status quo, each incremental change can only accomplish so much. And continuing to push forward and recognize incrementalism’s limitations is necessary to advancing towards a more radical horizon.[277] So each incremental shift from more to less punitive might get us closer to a more just and humane way of responding to interpersonal harm and risk creation.[278]

Nevertheless, focusing on—or at least surfacing—the underlying problems or objectionable features of the carceral state might help to break the cycle. I take this observation to be consistent with Kaufman, Kaiser, and Rumpf’s argument: Deciding what “modalities” of state control are particularly concerning should be an important component of identifying what reforms are acceptable or unacceptable.[279] For example, if activists and academics are concerned about surveillance, then it hardly would make sense to support electronic monitoring—not because the monitoring is punitive, but because it’s a clear form of surveillance. If “punitive” simply operates as a synonym or shorthand for “bad,” it grows harder to home in on the how or why of criminal justice reform, minimalism, or abolition.

Conclusion

Writing nearly three decades ago, Carol Steiker argued that “the charge that the state is illegitimately punishing has come to stand for all objections to especially burdensome or otherwise abhorrent state actions.”[280] She went on to warn that “[t]his conflation of ‘punishment’ with ‘everything bad’ both dilutes the significance of the charge of illegitimate punishment and obscures and impoverishes discourse about other substantive and procedural limits on state action.”[281] Over the intervening decades, critiques of the criminal system have proliferated, but I think Steiker’s admonition still stands. Without greater specificity, it’s sometimes hard to figure out where those critiques lead. Is the system redeemable, or must it be abolished? If the system needs to be scaled back, what is the defensible core of criminal law and punishment? To what extent are critiques of criminal legal institutions specific to the criminal realm, and to what extent are they broader critiques of U.S. political economy, necessitating a broader reformist or transformative project?[282]

To be sure, these are difficult questions. And different commentators working on criminal policy have very different answers. But, in this Article, I have argued that focusing on what is or isn’t punishment sidesteps too many of these questions, obscuring important disagreements and important possibilities for change. Deciding on the right definition of punishment can’t address these issues. But moving away from a punishment frame might help us appreciate the magnitude of the problems that reformers and abolitionists face—to better describe the objectionable and unjust features of the criminal system and to shift the terms of the debate.

Copyright © 2026 Benjamin Levin, Professor of Law, Washington University in St. Louis. For helpful comments and conversations, many thanks to Shirin Bakhshay, Nila Bala, David Ball, Matthew Boaz, Jenny Braun, Jack Chin, Travis Crum, Brenda Dvoskin, Jessica Eaglin, Sheldon Evans, Malcolm Feeley, Eric Fish, Chad Flanders, Amy Gais, Trevor Gardner, Eve Hanan, Gautam Hans, Carissa Byrne Hessick, John Inazu, Joel Johnson, Peter Joy, Sam Kamin, Tamsin Kimoto, Frank Lovett, Ben McJunkin, Eric Miller, Jamelia Morgan, Rob Schehr, Joan Segal, Carol Steiker, India Thusi, Kit Wellmon, Kate Weisburd, and Ahmed White. This Article also benefited from presentations at Cornell Law School; the University of Kentucky J. David Rosenberg College of Law; the Workshop on Politics, Economics, and Society at Washington University in St. Louis; and the Southwest Criminal Legal Scholarship Conference at the UNLV William S. Boyd School of Law. For excellent research assistance, thanks to Rachel Sharma.

[1]. See Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2024, Prison Policy Initiative (Mar. 14, 2024), https://www.prisonpolicy.org/reports/pie2024.html [https://perma.cc/XL58-L5NX].

[2]. See id.

[3]. See I. Bennett Capers, The Under-Policed, 51 Wake Forest L. Rev. 589, 591 (2016) (“We live in a country that, between 1970 and 2005, increased its prison population by 628%, where one in every one hundred persons is behind bars, and where our prisons and jails now hold about 2.2 million individuals.” (citing The Sentencing Project, Trends in U.S. Corrections 2 (2015), https://sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-Corrections.pdf [https://perma.cc/5XY3-MFJP])).

[4]. See Benjamin Levin, The Consensus Myth in Criminal Justice Reform, 117 Mich. L. Rev. 259, 274–90 (2018). Criminologist David Garland is credited with popularizing “mass incarceration” or “mass imprisonment” as a way of describing U.S. penal policy. See James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. Rev. 21, 23 n.6 (2012) (“David Garland is credited with coining ‘mass imprisonment.’”). For the foundational definition, seeDavid Garland, Introduction: The Meaning of Mass Imprisonment, in Mass Imprisonment: Social Causes and Consequences 1–3, 5–6 (David Garland ed., 2001) (explaining the defining features of “mass imprisonment” and the policy changes that led to its rise).

       [5]. Jenny Roberts, Expunging America’s Rap Sheet in the Information Age, 2015 Wis. L. Rev. 321, 325 (footnotes omitted). On the role of misdemeanors and misdemeanor policing in criminal policy, see generally Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing (2018) (describing the role of misdemeanors in the criminal system); Alexandra Natapoff, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal (2018) (same).

       [6]. Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1803–04 (2012) (introducing the concept of “mass conviction” and arguing that “focusing exclusively on ‘mass incarceration’ obscures the reality that most convicted persons are not sentenced to prison”).

       [7]. Throughout this Article, I refer to the “criminal system” advisedly, mindful of critiques that the system may not actually be a system. See Lawrence M. Friedman, Crime and Punishment in American History 461 (1993) (“[T]he criminal justice ‘system’ is not a system at all.”); Sara Mayeux, The Idea of “The Criminal Justice System,” 45 Am. J. Crim. L. 55, 65 (2018); Bernard E. Harcourt, The Systems Fallacy: A Genealogy and Critique of Public Policy and Cost-Benefit Analysis, 47 J. Legal Studs. 419, 421 (2018). Despite its significant shortcomings, the phrase remains a useful shorthand for a difficult-to-define set of institutions. See Benjamin Levin, After the Criminal Justice System, 98 Wash. L. Rev. 899, 939–42 (2023) (describing the benefits of the “criminal system” as a label for institutions of U.S. penal administration).

[8]. See Sawyer & Wagner, supra note 1.

[9]. See Criminal Records and Reentry Toolkit, Nat’l Conference of State Legislatures (Mar. 18, 2025), https://www.ncsl.org/civil-and-criminal-justice/criminal-records-and-reentry-toolkit [https://perma.cc/ZLR9-82DY].

     [10]. Rebecca Neusteter & Megan O’Toole, Every Three Seconds: Unlocking Police Data on Arrests 1 (2019), https://search.issuelab.org/resource/every-three-seconds-unlocking-police-data-on-arrests.html [https://perma.cc/WG38-RYXT].

[11]. See Herrera v. Collins, 506 U.S. 390, 420 (1993) (O’Connor, J., concurring); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963); United States v. Ursery, 518 U.S. 267, 273 (1996); Austin v. United States, 509 U.S. 602, 619 (1993). For an extensive treatment of the Court’s distinction between civil and criminal, see generally Carol S. Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 Geo. L.J. 775 (1997).

[12]. See, e.g., Douglas Husak, Overcriminalization: The Limits of the Criminal Law 3 (2008) (“I argue that overcriminalization is objectionable mainly because it produces too much punishment.”).

[13]. See infra Part I.

[14]. See infra Part II.

[15]. See, e.g., Rachel Foran, Mariame Kaba & Katy Naples-Mitchell, Abolitionist Principles for Prosecutor Organizing: Origins and Next Steps, 16 Stan. J. C.R. & C.L. 496, 499 (2021) (describing “the criminal punishment system” as “a death-making system of racialized social control”); Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 34 (2019) (“By marking people for involvement in ‘misdemeanorland,’ forcing them to engage in burdensome procedural hassles, and requiring them to engage in disciplinary activities, this gargantuan branch of the criminal punishment system exerts social control over the city’s black communities, with no real regard for residents’ culpability for crime.” (footnote omitted)); Dean Spade, The Only Way to End Racialized Gender Violence in Prisons is to End Prisons: A Response to Russell Robinson’s “Masculinity As Prison,” 3 Calif. L. Rev. Online 182, 185 (2012) (“The contemporary criminal punishment system developed from this adaptation of slavery to create a somewhat different racially targeted form of control and exploitation. The continuation of those tactics can be seen in the prison system’s contemporary operations.”).

[16]. See infra Part II.

     [17]. On the cultural place of prisons and incarceration, see generally Caleb Smith, The Prison and the American Imagination (2009). On the role of prisons in U.S. political economy, seegenerally Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (2007); Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics (2015).

[18]. See, e.g., Alice Ristroph, The Wages of Criminal Law Exceptionalism, 17 Crim. L. & Phil. 5, 5 (2023) (“[B]urdens exceptionalism refers to claims that criminal law imposes unique burdens categorically distinct from the burdens imposed by other forms of law.” (internal quotation marks omitted)).

     [19]. On the complicated role of intention in criminal policy and critical scholarship, see generally Hadar Aviram, What Were “They” Thinking, and Does It Matter? Structural Inequality and Individual Intent in Criminal Justice Reform, 45 Law & Soc. Inquiry 249 (2020). See also David Garland, Punishment and Welfare: A History of Penal Struggles 255 (Quid Pro Books 2018) (1985) (“As for the relation between penality and other social institutions, it has been demonstrated that this is a complex . . . interlinking relationship of pulls and relays, exchanges and interactions. . . . [I]t can make no sense to conceive of this relationship as one of simple determinism . . . [P]enality is constructed around an eclectic series of disparate and contradictory forms and logics. . . .”); Alice Ristroph, State Intentions and the Law of Punishment, 98 J. Crim. L. & Criminology 1353, 1357 (2008) (“[W]e 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.”); Ashley Rubin, True Believers, Rational Actors, and Bad Actors: Placing “The Prison and the Factory” in Penal-Historiographic Context, 22 Punishment & Soc. 736, 740 (2020) (noting that criminal policymakers “had a multiplicity of motivations” and often were—and are—defined by a mix of contradictions (emphasis in original)).

[20]. See generally Benjamin Levin, Disentangling Safety and Accountability in Criminal Justice Policy,111 Iowa L. Rev. 1009 (2026) (critiquing the inconsistent functions of the criminal system).

[21]. See infra Parts I, II.B.1.

[22]. See, e.g., Jeffrie G. Murphy, “In the Penal Colony” and Why I Am Now Reluctant to Teach Criminal Law, 33 Crim. Just. Ethics 72, 76 (2014) (emphasizing the disconnect between the Model Penal Code and the realities of mass incarceration); Shaun Ossei-Owusu, Kangaroo Courts, 134 Harv. L. Rev. F. 200, 211 (2021) (critiquing the uncritical posture of U.S. criminal legal education); Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631, 1634–36 (2020) (critiquing substantive criminal law classes as constructing a coherent, morals-based understanding of the criminal system); Michael T. Cahill, Criminal Law’s “Mediating Rules”: Balancing, Harmonization, or Accident?, 93 Va. L. Rev. In Brief 199, 199 (2007) (critiquing the “tendency of theoretical work in criminal law . . . to focus on . . . questions about the proper justification, scope, and amount of punishment in the abstract, while giving significantly less consideration to the various institutional and procedural aspects of any concrete system of imposing such punishment.”); Ahmed A. White, Capitalism, Social Marginality, and the Rule of Law’s Uncertain Fate in Modern Society, 37 Ariz. St. L.J. 759, 786 (2005) (“Conventional accounts of the criminal justice system tend to obscure its social control agenda behind the idea that its origins and functions lie with the prevention and punishment of crime or even the humanitarian reform of offenders.”).

[23]. See infra Part II.

[24]. See infra Part III.B.1.

[25]. See infra Parts III.A, III.B.2.

[26]. See, e.g., Gottschalk, supra note 17, at 256 (arguing that “[t]he problem of the prison beyond the prison is enormous and growing,” as people with criminal records “are ensnared in a web of controls that stretches far beyond the prison gate”); Sharon Dolovich & Alexandra Natapoff, Introduction: Mapping the New Criminal Justice Thinking, in The New Criminal Justice Thinking 1, 1 (Sharon Dolovich & Alexandra Natapoff eds., 2017) (“If we are to fix the current criminal system . . . we need a complete and nuanced understanding of what exactly this system is: What social and political institutions, what laws and policies, does it encompass?” (emphasis in original)); Nicole Kaufman, Joshua Kaiser & Cesraéa Rumpf, Beyond Punishment: The Penal State’s Interventionist, Covert, and Negligent Modalities of Control, 43 Law & Soc. Inquiry 468, 469 (2018) (“The penal state reaches beyond carceral confinement and the well documented iterations of this confinement through civil laws and regulations, bureaucratic operations, and for profit and nonprofit nongovernmental organizations (NGOs).” (emphasis in original)); Katherine Beckett & Naomi Murakawa, Mapping the Shadow Carceral State: Toward an Institutionally Capacious Approach to Punishment, 16 Theoretical Criminology 221, 222 (2012) (“The shadow carceral state also operates in opaque, entangling ways, ensnaring an ever-larger share of the population through civil injunctions, legal financial obligations, and violations of administrative law.”); David Garland, Penality and the Penal State, 51 Criminology 475, 478–79 (2013). The foundational cite here is Michel Foucault, Discipline and Punish: The Birth of the Prison 297 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977) (identifying institutions and modes of governance “which, well beyond the frontiers of criminal law, constitute[] what one might call the carceral archipelago”).

[27].For other work that takes such an approach, see generally Vincent Chiao, Criminal Law in the Age of the Administrative State (2019); Nicola Lacey, Approaching or Re-Thinking the Realm of Criminal Law?, 14 Crim. L. & Phil. 307, 309 (2020); Eric J. Miller, Review, The End of Criminal Law?, The New Rambler Review (Oct. 15, 2020), https://newramblerreview.com/book-reviews/law/the-end-of-the-criminal-law [https://perma.cc/35G7-GW6T]; Alice Ristroph, Just Violence, 56 Ariz. L. Rev. 1017, 1040 (2014).

[28]. See supra notes 19–26 and accompanying text.

[29]. See infra Part III.

     [30]. To be clear, my focus here is on U.S. criminal law scholarship and what I see as the predominant approaches in this corner of the field.

[31]. See infra notes 32–37, and accompanying text.

[32]. See Steiker, supra note 11, at 800 (citing George P. Fletcher, Rethinking Criminal Law § 6.3.1, at 409 (1978)).

[33]. See, e.g., Ryan Abbott & Alex Sarch, Punishing Artificial Intelligence: Legal Fiction or Science Fiction, 53 U.C. Davis L. Rev. 323, 337 (2019) (citing Mitchell N. Berman, The Justification of Punishment, in The Routledge Companion to Philosophy of Law 141, 144–45 (Andrei Marmor ed., 2012) (noting “the broad consensus in the literature” on this definition)); Lee Kovarsky, Suffering Before Execution, 109 Va. L. Rev. 1429, 1452–54 (2023) (relying on the Hart or “Flew-Benn-Hart” definition of punishment and observing that “the principles discussed above are reasonably well-settled ideas associated with mainline punishment theory.”); Brittany L. Deitch, Life Without Parole As Death Without Dignity, 72 Ala. L. Rev. 327, 338 (2020) (same).

     [34]. H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 4–5 (2d ed. 2008). Hart notes that there are “sub-standard or secondary or substandard cases” that also might be considered “punishment”:

(a) Punishments for breaches of legal rules imposed or administered otherwise than by officials (decentralized sanctions).

(b) Punishments for breaches of non-legal rules or orders (punishments in a family or school).

(c) Vicarious or collective punishments of some member of a social group for actions done by others without the former’s authorization, encouragement, control, or permission.

(d) Punishment of persons (otherwise than under (c)) who neither are in fact nor supposed to be offenders.

Id. at 5. Nevertheless, the legal literature primarily focuses on the “standard” or “central” cases. See supra notes 32–33 and accompanying text.

     [35]. Kovarsky, supra note 33, at 1454.

[36]. See Hart, supra note 34, at 4–5.

[37]. E.g., Joel Feinberg, The Expressive Function of Punishment, 49 Monist 397, 401 (1965); R.A. Duff, The Realm of Criminal Law 19 (2018); Jean Hampton, An Expressive Theory of Retribution, in Retributivism and its Critics 1, 11–15 (Wesley Cragg ed., 1992).

     [38]. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963).

[39]. See Adam J. Kolber, Unintentional Punishment, 18 Legal Theory 1, 5 (2012) (“Criminal law scholars widely agree that in order for some conduct to constitute punishment, it must be intentionally imposed. H.L.A. Hart, perhaps the most influential punishment theorist of the twentieth century, famously claimed that a central feature of punishment is that it is ‘intentionally administered’ and ‘deliberate[ly] impos[ed].’ Courts, too, have given special emphasis to the intentions behind certain conduct when deciding whether it constitutes punishment.” (footnotes omitted)); see also David Boonin, The Problem of Punishment 13–14 n.14 (2008) (noting that an intent requirement is “almost universally accepted in the literature on punishment”).

[40]. See United States v. Halper, 490 U.S. 435, 447 n.7 (1989), abrogated by Hudson v. United States, 522 U.S. 93 (1997) (“This is not to say that whether a sanction constitutes punishment must be determined from the defendant’s perspective.”). But cf. Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre Dame L. Rev. 301, 312 (2015) (noting that at least some sites of judicial inquiry focus on “effects”).

[41]. Halper, 490 U.S. at 447 n.7.

     [42]. Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985) (internal citations omitted). For a compelling critique of Posner’s reasoning here and this conception of punishment, see Kolber, supra note 39, at 5–6.

[43]. Duckworth, 780 F.2d at 652.

[44]. See id.

     [45]. For helpful collections of cases reflecting this approach, see Kolber, supra note 39, at 5; and Kovarsky, supra note 33.

[46]. See, e.g., Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 781 (1994) (observing that a “so-called tax” might constitute punishment because it reflected “penal and prohibitory intent rather than the gathering of revenue” (quoting United States v. Constantine, 296 U.S. 287, 295 (1935))); Allen v. Illinois, 478 U.S. 364, 370 (1986) (“[T]he State has disavowed any interest in punishment, provided for the treatment of those it commits, and established a system under which committed persons may be released after the briefest time in confinement. The Act thus does not appear to promote either of the traditional aims of punishment—retribution and deterrence.” (internal quotation marks omitted)); Schall v. Martin, 467 U.S. 253, 269 (1984) (emphasizing state intent); United States v. Bajakajian, 524 U.S. 321, 328 (1998) (same).

     [47]. 481 U.S. 739, 747 (1987).

[48]. Id. at 747 (internal quotation marks and alterations omitted).

     [49]. Bell v. Wolfish, 441 U.S. 520, 537 (1979).

[50].Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963);  cf. United States v. Halper, 490 U.S. 435, 449 (1989), abrogated by Hudson v. United States, 522 U.S. 93 (1997) (“We acknowledge that this inquiry will not be an exact pursuit.”); Wayne A. Logan, The Ex Post Facto Clause and the Jurisprudence of Punishment, 35 Am. Crim. L. Rev. 1261, 1280 (1998) (“Despite this importance, the Supreme Court’s case law on the punishment question in recent times has been so inconsistent that it borders on the unintelligible, evidencing a decidedly circular, at times patently result-driven effort to distinguish whether a sanction is ‘civil’ or ‘criminal,’ ‘preventive’ or ‘punitive,’ ‘regulatory’ or ‘retributive.’” (footnotes omitted)).

     [51]. Mendoza-Martinez, 372 U.S. at 168.

[52]. Mendoza-Martinez, 372 U.S. at 168–69 (emphasis added) (enumeration added) (footnotes omitted).

     [53]. Steiker, supra note 11, at 797.

[54]. See United States v. Salerno, 481 U.S. 739, 747–48 (1987).

[55]. E.g., United States v. Ursery, 518 U.S. 267, 270 (1996); Rex Trailer Co. v. United States, 350 U.S. 148, 151 (1956). But see Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 783 (1994) (concluding that a drug tax constituted punishment for purposes of double jeopardy analysis); Austin v. United States, 509 U.S. 602, 604 (1993) (concluding that the Eighth Amendment applies to certain forms of property forfeiture).

[56]. See generally Margaret Colgate Love, Jenny Roberts & Wayne A. Logan, Collateral Consequences of Criminal Convictions: Law, Policy and Practice §§ 3.16, 3.18 (2013) (collecting cases).

[57]. See Smith v. Doe, 538 U.S. 84, 92 (2003) (“Because we ordinarily defer to the legislature’s stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” (internal citations and quotation marks omitted)).

     [58]. And, of course, that generally only state action can be “punishment.” Seesupra notes 35–36.

[59]. Cf. Donald A. Dripps, The Priority of Politics and Procedure over Perfectionism in Penal Law, or, Blackmail in Perspective, 3 Crim. L. & Phil. 247, 256 (2009) (“If we build a requirement of public authority into the definition of punishment, private punishment is excluded terminologically. That would mean that the victims of lynching are not punished. We would need some other word for the practice of private actors who injure those who break public laws or social norms.”).

[60]. Seeinfra Part II.A; see also Kolber, supra note 39, at 24 (arguing that excluding certain harms from the category of “state punishment” means that those harms needn’t be justified under conventional theories of punishment).

     [61]. That said, some scholars have suggested that moving outside of a punishment framework might allow for more robust procedural protections and judicial review. See, e.g., Kate Weisburd, Rights Violations As Punishment, 111 Calif. L. Rev. 1305, 1367 (2023) (advocating against excluding noncarceral punishment from strong judicial review); Kovarsky, supra note 33, at 1478 (arguing that nonpunitive pre-execution confinement is more constrained by procedural protections than punitive confinement).

[62]. Cf. Bell v. Wolfish, 441 U.S. 520, 565 (1979) (Marshall, J., dissenting) (“[T]he Court contracts a broad standard, sensitive to the deprivations imposed on detainees, into one that seeks merely to sanitize official motives and prohibit irrational behavior. As thus reformulated, the test lacks any real content.”).

     [63]. William Stuntz famously argued that U.S. criminal policy was shaped by “pathological politics” that led to expanding criminal codes and prison populations. See generally William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001) (discussing how criminal codes came to be so overbroad.).

[64]. See infra notes 149–153 and accompanying text.

     [65]. On criminal law’s role in exacerbating inequality, see generally Bruce Western, Punishment and Inequality in America (2006).

     [66]. Jeffrie G. Murphy, Remorse, Apology, and Mercy, 4 Ohio St. J. Crim. L. 423, 452 (2007).

     [67]. On the failure of U.S. law schools and legal scholars to address incarceration sufficiently, see generally Sharon Dolovich, Teaching Prison Law, 62 J. Legal Educ. 218 (2012).

     [68]. M. Eve Hanan, Invisible Prisons, 54 U.C. Davis L. Rev. 1185, 1197 (2020).

[69]. See infra Part III.A.

     [70]. It’s important to emphasize that these are different and at-times divergent projects—that trying to provide a more accurate description of the social world isn’t necessarily the same as articulating a theory that might be useful in advocacy and activism. See Adam J. Kolber, How to Fix Legal Scholarmush, 95 Ind. L.J. 1191, 1193 (2020) (describing this distinction and critiquing the lack of clarity in distinguishing between these objectives); Amna A. Akbar, Sameer M. Ashar & Jocelyn Simonson, Movement Law, 73 Stan. L. Rev. 821, 873 (2021) (same).

     [71]. An outlier here is the literature on the subjective experience of punishment. For a critique of punishment as failing to reflect individual, subjective experience, see generallyAdam J. Kolber, The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009); Kolber, supra note 39, at 2. See also Alice Ristroph, Hope,Imprisonment, and the Constitution, 23 Fed. Sent’g Rep. 75, 77 (2010) (“Graham thus suggests that to assess the severity of a prison sentence, one must give some consideration to the prisoner’s subjective experience. It is not enough to consult the calendar and count years.”).

[72]. Cf. Gabriel J. Chin & Margaret Love, Status as Punishment a Critical Guide to Padilla v. Kentucky, 25 Crim. Just. 21, 22 (2010) (“These [collateral] consequences certainly feel like punishment to the individuals affected, whether or not they are subject to the same constitutional limitations.”).

     [73]. This approach also might reflect a change in perspective to emphasize the people experiencing punishment, rather than the people and institutions doing the punishing. That sort of perspective-shifting is increasingly common in critical literature on the criminal system. See infra notes 83–85 and accompanying text. For examples of this approach, see generally Hanan, supra note 68; Erin Collins, Abolishing the Evidence-Based Paradigm, 48 B.Y.U. L. Rev. 403, 453 (2022); and Ngozi Okidegbe, Discredited Data, 107 Corn. L. Rev. 2007, 2050 (2022).

     [74]. And, in this respect, we might understand the move to expand the definition of punishment as reflecting a frustration with normative scholarship that purports to be descriptive (i.e., with scholarship that characterizes criminal law and its administration in ways that bear little resemblance to reality). See supra note 70.

     [75]. Malcolm Feeley, The Process is the Punishment: Handling Cases in a Lower Criminal Court (1979).

[76]. See id. at 30–31.

[77]. Id.

[78]. See Jennifer Earl, The Process Is the Punishment: Thirty Years Later, 33 Law & Soc. Inquiry 737, 738 (2008) (“TPP has become a classic in sociolegal research. Its impact on Law and Society theory and research has been truly substantial, whether that impact is measured in terms of the number of core themes of TPP that have become staples of sociolegal research, the diversity of sociolegal research areas that have been impacted by themes in TPP, or even as coarsely as a sheer citation count.”).

     [79]. For an extensive discussion of this influence, see Earl, supra note 78.

     [80]. On misdemeanors, see generally Kohler-Hausmann, supra note 5; Natapoff, supra note 5; Amanda Geller, The Process Is Still the Punishment: Low-Level Arrests in the Broken Windows Era, 37 Cardozo L. Rev. 1025, 1037 (2016); Brenda Sims Blackwell & Clark D. Cunningham, Taking the Punishment Out of the Process: From Substantive Criminal Justice Through Procedural Justice to Restorative Justice, 67 L. & Contemp. Probs. 59, 60 (2004).

     [81]. On immigration courts, see generallyJuliet Stumpf, The Process is the Punishment in Crimmigration Law, in The Borders of Punishment: Migration, Citizenship, and Social Exclusion 58, 73 (Katja Franko Aas & Mary Bosworth eds., 2013); Christopher Levesque, Kimberly Horner & Linus Chan, Process As Suffering: How U.S. Immigration Court Process and Culture Prevent Substantive Justice, 86 Alb. L. Rev. 471, 476 (2022–2023).

     [82]. On the child welfare (family regulation) system, see generally S. Lisa Washington, Time and Punishment, 134 Yale L.J. 536 (2024).

[83]. See, e.g., Ruha Benjamin, Introduction, in Captivating Technology: Race, Carceral Technoscience, and Liberatory Imagination in Everyday Life 1, 3 (Ruha Benjamin ed., 2019); Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition Can Build a Safer World 1–32 (2022); Hanan, supra note 68.

[84]. See, e.g., Hanan, supra note 68; Seema Tahir Saifee, Decarceration’s Inside Partners, 91 Fordham L. Rev. 53, 63 (2022).

[85]. See, e.g., Maya Schenwar & Victoria Law, Prison by Any Other Name: The Harmful Consequences of Popular Reforms 87–173 (2020); Vincent M. Southerland, The Master’s Tools and a Mission: Using Community Control and Oversight Laws to Resist and Abolish Police Surveillance Technologies, 70 UCLA L. Rev. 2, 19 (2023); S. Lisa Washington, Survived & Coerced: Epistemic Injustice in the Family Regulation System, 122 Colum. L. Rev. 1097, 1160 (2022).

     [86]. There’s something to be said here about both the rise of interdisciplinary legal scholarship, but also about the sociology of the legal academy. Legal academics with a criminal practice background—particularly public defenders—might be more likely to have spent a lot of time dealing with these corners of the system. My own anecdotal impression is that criminal law professors are increasingly likely to have experience in public defense, as opposed to federal prosecution or white-collar practice, for example. That shift could help explain this impulse to focus on misdemeanors, bail, collateral consequences, interactions with the immigration system, the costs of state supervision, etc.

     [87]. Alexandra Natapoff, The Penal Pyramid, in The New Criminal Justice Thinking 71, 73 (Sharon Dolovich & Alexandra Natapoff eds., 2017). At the top are serious felonies and cases with high-status defendants that involve a great deal of formal process. Id. at 72. As we move down the pyramid, we get to the majority of the cases in the system: misdemeanors and less serious charges, where formal criminal process is decidedly lacking. Id.

     [88]. For one account of this shift as a necessary corrective, see generallyRistroph, The Curriculum of the Carceral State, supra note 22 (outlining an alternative to the conventional criminal law curriculum). On the tension between theory and reality in criminal practice, seeChad Flanders, Retribution and Reform, 70 Md. L. Rev. 87, 89 (2010); and Robert Weisberg, Reality-Challenged Philosophies of Punishment, 95 Marq. L. Rev. 1203, 1204 (2012).

     [89]. Dolovich & Natapoff, supra note 26, at 9.

     [90]. Weisburd, supra note 61, at 1367.

[91]. Id.; see also Erin Murphy, Paradigms of Restraint, 57 Duke L.J. 1321, 1323 (2008) (“Suddenly prison may no longer seem the state’s only means of restricting liberty that merits serious consideration.”).

     [92]. Other scholars have emphasized the ways in which many decisions about criminalization and sentencing have come to focus more on risk management than moral decisions about culpability. See Bernard E. Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age 193 (2007); Jessica M. Eaglin, Population-Based Sentencing, 106 Corn. L. Rev. 353, 357 (2021) (arguing that “the institutionalization of actuarial risk assessments at sentencing reflects the extension of a larger, historically situated push to move judges away from passing moral judgment on individual defendants and toward basing sentencing on population-level representations of crimes and offenses”).

[93]. See, e.g., Georg Rusche & Otto Kirchheimer, Punishment and Social Structure 108 (Russell & Russell 1968) (1939) (arguing that prisons advance the logic of capitalism); Angela Y. Davis, Are Prisons Obsolete? 10–21 (2003) (same).

[94]. See supra Part I.

     [95]. On the criminal system and social control, see generally Stanley Cohen, Visions of Social Control: Crime, Punishment, and Classification (1985); David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (2001); Stuart Hall, Chas Critcher, Tony Jefferson, John Clarke, & Brian Roberts, Policing the Crisis: Mugging, the State, and Law and Order (1978) (examining the intersection of criminal law and social control through the lens of mugging); Jonathan Simon, Poor Discipline: Parole and the Social Control of the Underclass, 1890–1900 (1993).

[96]. Cf. Paulina D. Arnold, How Immigration Detention Became Exceptional, 75 Stan. L. Rev. 261, 269–73 (2023) (analyzing how “civil confinement became the primary method of government control over socially disfavored groups” in early American history).

[97]. Cf. Arnold, supra note 96, at 333 (noting the historical use of ostensibly “civil” confinement as a vehicle of “social control”).

     [98]. On school discipline as a form of social control and a quasi-criminal institution, see generally Aya Gruber, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration 175–77 (2020); Aya Gruber, #MeToo and Mass Incarceration, 17 Ohio St. J. Crim. L. 275, 281 (2020); and Jacob Gersen & Jeannie Suk, The Sex Bureaucracy, 104 Calif. L. Rev. 881, 897 (2016). On workplace discipline as reflecting similar dynamics, see generally Elizabeth Anderson, Private Government: How Employers Rule Our Lives (and Why We Don’t Talk About It) 63 (2017); Benjamin Levin, Criminal Employment Law, 39 Cardozo L. Rev. 2265, 2292 (2018); Ahmed A. White, My Coworker,My Enemy: Solidarity, Workplace Control, and the Class Politics of Title VII, 63 Buff. L. Rev. 1061, 1063 (2015); and Janine Young Kim & Matthew J. Parlow, Off-Court Misbehavior: Sports Leagues and Private Punishment, 99 J. Crim. L. & Criminology 573, 597 (2009).

[99]. See infra notes 186–190 and accompanying text.

[100]. See generally Foucault, supra note 26 (discussing the evolution of punishment).

[101]. See generally Michel Foucault, The Punitive Society: Lectures at the Collège de France 1972–73 (Bernard E. Harcourt ed., Graham Burchell trans., Palgrave Macmillan 2015) (2013) (explaining “the punitive society”).

   [102]. Foucault, supra note 26, at 303.

[103]. Id. at 305.

[104]. Id. at 297.

[105]. See Gottschalk, supra note 17, at 241–57.

[106]. See Beckett & Murakawa, supra note 26, at 222.

   [107]. That said, this understanding of diffuse logics of exclusion and control needn’t lead to a conclusion that everything is punishment. See infra Part III.A.

   [108]. I guess they might be, but that would be a coincidence.

[109]. See infra Part II.B.1.

[110]. See supra notes 38–48 and accompanying text.

[111]. See supra notes 38–48 and accompanying text.

[112]. See Steiker, supra note 11, at 779.

[113]. Id.

[114]. See id.

[115]. See, e.g., Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 Stan. L. & Pol’y Rev. 153, 160 (1999) (“[C]ollateral sentencing consequences should be clearly designated as part of the sentence at the time punishment is imposed and explicitly considered part of the penalty.”); Velmer S. Burton, Jr., Frances T. Cullen & Lawrence F. Travis III, The Collateral Consequences of a Felony Conviction: A National Study of State Statutes, 51 Fed. Probation 52, 52 (Sep. 1987) (arguing that collateral consequences “are . . . the most persistent punishments that are inflicted for [their] crime.”); Deborah N. Archer & Kele S. Williams, Making America “The Land of Second Chances”: Restoring Socioeconomic Rights for Ex-Offenders, 30 N.Y.U. Rev. L. & Soc. Change 527, 584 (2006) (“Appreciating the uselessness of these restrictions, their essential nature comes out: these sanctions are simply another layer of punishment.”); Logan, supra note 50, at 1316–18 (endorsing a new approach to the punishment question that would allow for an expansion of Ex Post Facto Clause protections); Note, The Equal Protection Clause as a Limitation on the States’ Power To Disfranchise Those Convicted of a Crime, 21 Rutgers L. Rev. 297, 309–10 (1967) (“The original purpose in depriving the criminal of certain civil rights appears to have been to ostracize and degrade him in the eyes of the community—a form of further punishment.”); Chin, supra note 72.

   [116]. Steiker, supra note 11, at 799.

   [117]. Weisburd, supra note 61, at 1367.

[118]. See, e.g., Margaret Colgate Love & Gabriel J. Chin, Old Wine in a New Skin: The ABA Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons, 16 Fed. Sent’g Rep. 232, 232 (2004); Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. Rev. 623, 686–90 (2006).

[119]. See generally A.B.A., ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons (3d ed. 2004); Margaret Colgate Love, Managing Collateral Consequences in the Sentencing Process: The Revised Sentencing Articles of the Model Penal Code, 2015 Wis. L. Rev. 247, 250–51.

[120]. See, e.g., César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. 1346, 1393 (2014) (“To reduce the incidence of abuse by government officials, the U.S. Constitution imposes significant procedural obstacles to imprisonment. If immigration detention is to be reconceptualized as punishment, then it becomes necessary to consider the logical legal outcome: Imposition of punishment would be subject to the constitutional constraints on governmental action that apply to all criminal prosecutions.”); Megan T. Stevenson & Sandra G. Mayson, Pretrial Detention and the Value of Liberty, 108 Va. L. Rev. 709, 762 (2022) (arguing that the practice of crediting defendants with “time served” for pretrial detention makes it hard to contend that pretrial detention isn’t punishment); Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 783 (2017) (“Given these and other costs of pretrial detention, it may be an excessive response to low risks of pretrial flight and crime—and therefore constitute impermissible pretrial ‘punishment.’”); Laura I. Appleman, Justice in the Shadowlands: Pretrial Detention, Punishment, & the Sixth Amendment, 69 Wash. & Lee L. Rev. 1297, 1369 (2012) (“Our current system of pretrial detention lies in shambles, incarcerating those not yet convicted in punitive conditions often far worse than those existing in prisons.”); Marc Miller & Martin Guggenheim, Pretrial Detention and Punishment, 75 Minn. L. Rev. 335, 373 (1990) (“In ordering preventive detention, a magistrate rules necessarily that the accused is ready, willing, and able to break the law in the near future, concluding, therefore, that the individual should be jailed. Humpty Dumpty notwithstanding, that’s punishment.”).

[121]. See, e.g., Beth A. Colgan, Revenue, Race, and the Potential Unintended Consequences of Traffic Enforcement Reform, 101 N.C. L. Rev. 889, 904 (2023) (“Further, lawmakers in many jurisdictions have also added a wide variety of administrative fees. While those subjected to pay such fees experience them as punishment, fees are nominally designed to recoup system costs . . . .”); Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55, 120 (2019) (arguing that fines and fees, coupled with disenfranchisement, constitute punishment).

   [122]. For an extensive analysis of these issues, see generally Weisburd, supra note 61. See also Sheldon A. Evans, Punishment Externalities and the Prison Tax, 111 Calif. L. Rev. 683, 746 (2023) (describing “e-carceration” as a “surveillance-heavy alternative punishment”); Kate Weisburd, Punitive Surveillance, 108 Va. L. Rev. 147, 193 (2022) (“Several scholars, myself included, have highlighted the ways that punitive surveillance is a form of punishment . . . .” (citing Avlana K. Eisenberg, Mass Monitoring, 90 S. Cal. L. Rev. 123, 136–45 (2017); Chaz Arnett, From Decarceration to E-Carceration, 41 Cardozo L. Rev. 641, 674–80 (2019)).

[123]. See Mayson, supra note 40, at 303. To the extent scholars depart from this view or argue for a narrower definition of punishment, that move is often couched in terms of expanding protections for criminal defendants—advancing similar ends sought by proponents of an expansive definition of punishment. See infra note 231.

[124]. See, e.g., Mayson, supra note 40, at 303 (“Constitutional challenges to [criminal convictions], meanwhile, have generally failed. Courts have consistently found that [criminal convictions] do not constitute punishment, and so cannot violate any constraint on the state’s power to punish (like the Ex Post Facto Clause or Eighth Amendment).”); Weisburd, supra note 61, at 1335–37 (arguing that judges tend to reject claims that would expand the definition of punishment and the attendant protections—in effect applying an unjustified “punishment exception” to constitutional analysis).

[125]. See Raymond Williams, Keywords: A Vocabulary of Culture and Society 24 (2d ed. 1983) (describing a theory of language grounded in an ongoing process of “shaping and reshaping[] [meaning] in real circumstances and from profoundly different and important points of view”).

   [126]. Mayson, supra note 40, at 361.

   [127]. Viewing the use of “punishment” as a rhetorical or advocacy strategy should raise a distinct set of questions about both context and instrumental efficacy. Cf. Jessica M. Eaglin, To “Defund” the Police, 73 Stan. L. Rev. Online 120, 134 (2021) (making a similar claim and undertaking a similar analysis with respect to “defund the police”).

[128]. See infra notes 263–264 and accompanying text.

[129]. See infra notes 130, 263–266 and accompanying text.

   [130]. For an extended discussion of the “criminal punishment system” as a label, see generally Levin, After the Criminal Justice System, supra note 7, at 927–31.

   [131]. Sara Mayeux, The Idea of “The Criminal Justice System,” 45 Am. J. Crim. L. 55, 56 (2018) (citing Victoria Law, 8 Ways to Support Protests Against the Criminal Punishment System, Waging Nonviolence (Dec. 12, 2014), https://wagingnonviolence.org/2014/12/8-ways-support-protests-criminal-punishment-system-cant-get-street/ [https://perma.cc/U8T4-7496]); see alsoFive Tips for Talking About Criminal Punishment to Help End Mass Incarceration, Am. Friends Serv. Comm. (May 31, 2018), https://afsc.org/news/five-tips-talking-about-criminal-punishment-help-end-mass-incarceration [https://perma.cc/TSJ6-9AHY] (“[W]e talk about the ‘criminal punishment system’ or the ‘criminal legal system’ because the system as it exists is focused on punishment—not justice.”).

   [132]. Rachel Foran, Mariame Kaba & Katy Naples-Mitchell, Abolitionist Principles for Prosecutor Organizing: Origins and Next Steps, 16 Stan. J. C.R. & C.L. 496, 499 (2021).

[133]. See, e.g., Dean Spade, Their Laws Will Never Make Us Safer, in Against Equality: Prisons Will Not Protect You 1, 2 (Ryan Conrad ed., 2012) (“[G]iven the severe anti-black racism of the criminal punishment system, what does it mean to call on that system for justice and accountability? Many people working to dismantle racism identify the criminal punishment system as one of the primary apparatuses of racist violence and probably the most significant threat to black people in the U.S.”).

[134]. Id. at 497 n.2 (citations omitted).

[135]. See Steiker, supra note 11, at 812 (describing and critiquing “[t]his conflation of ‘punishment’ with ‘everything bad’”).

[136]. See supra Part II.A.

[137]. See supra Part II.B.

   [138]. Of course, this argument invites the important question of how to distinguish objectionable governance from desirable, or at least acceptable, governance. For a longer argument that this question should be a bigger piece of anticarceral scholarship, see generallyBenjamin Levin, Criminal Law Exceptionalism, 108 Va. L. Rev. 1381 (2022).

   [139]. On the “shadow carceral state,” see generally Beckett & Murakawa, supra note 26.

   [140]. On the “carceral archipelago,” see Foucault, supra note 26, at 297; Jonathan Simon, Rise of the Carceral State, 74 Soc. Rsch. 471, 490 (2007) (“Prisons were an important node in a system of sites for expert-based interventions in the subjective lives of the poor and marginal but only part of an archipelago. . . .”); Alice Ristroph, An Intellectual History of Mass Incarceration, 60 B.C. L. Rev. 1949, 1992 n.168 (2019) (positing that the phrase “carceral state” is a “direct outgrowth of Michel Foucault’s earlier concept of the ‘carceral archipelago’”).

   [141]. Foucault, The Punitive Society, supra note 101, at 91.

[142]. Cf. id. at 5 (undertaking the project of “break[ing] . . . down” punishment “into its constituent elements . . . [to] find the relations to power that underlie it and make it possible”).

[143]. See supra notes 128–130 and accompanying text.

[144]. See supra Part II.B.

[145]. See supra Part I.

[146]. Cf. Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 Stan. L. Rev. 1271, 1301 (2004) (“[T]he current sentencing regime that generated the enormous prison population is far from individualized. Indeed, the prison explosion is largely attributable to sentencing changes that made punishment less individualized.”).

[147]. See Trevor George Gardner, The Conflict Among African American Penal Interests: Rethinking Racial Equity in Criminal Procedure, 171 U. Pa. L. Rev. 1699, 1719 (2023) (“[T]he practice of criminal law has managed to insulate itself from this sort of macro theoretical treatment of American penal administration. Criminal law practice operates within a theoretical paradigm willfully ignorant of social structure. . . . Criminal punishment and its attendant physical hardships are thus premised on the culpability of the individual. . . . Each individual is thought to be principally responsible for his or her actions.”).

[148]. See Steven Arrigg Koh, Criminal Law’s Hidden Consensus, 101 Wash. U. L. Rev. 1805, 1812 (2024) (“In practice, prosecutors proceed one defendant at a time. Formally, they make individual determinations about criminal responsibility in each case, focusing on the individual guilt of each defendant.” (footnote omitted)).

[149]. See, e.g., Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in Criminal Courts, 129 Harv. L. Rev. 2049, 2051 (2016) (“[C]ase-by-case adjudication naturally focuses judicial attention on the case-specific details of individual claims, presented by individual litigants, one case at a time.”); Tracey L. Meares, Programming Errors: Understanding the Constitutionality of Stop-and-Frisk as a Program, Not an Incident, 82 U. Chi. L. Rev. 159, 164 (2015) (critiquing the Supreme Court’s “individual level” approach in assessing Terry stops, which does not account for the “systematic[]” and “deliberate[]” nature of stop-and-frisk programs); Daphna Renan, The Fourth Amendment as Administrative Governance, 68 Stan. L. Rev. 1039, 1041–42 (2016) (critiquing the “transactional” model for Fourth Amendment analysis, which focuses on “one-off” encounters between law enforcement and citizens, despite the fact that surveillance often occurs programmatically and systemically).

   [150]. Indeed, much of the literature on the individual, transactional, or retail levels of criminal legal decision-making critiques the institutional failure to think or solve problems on a macro scale. See supra notes 146–149.

   [151]. For a discussion of this dynamic in policing, see generally infra notes 151–154. For a discussion of this dynamic in prosecution, see generally Benjamin Levin, Prosecuting the Crisis, 50 Fordham Urb. L.J. 989 (2023).

[152]. See, e.g., Shima Baradaran Baughman, Crime and the Mythology of Police, 99 Wash. U.L. Rev. 65, 101 (2021) (“Day-to-day policing has remarkably little to do with crime, despite public perception to the contrary.”); Michal Buchhandler-Raphael, Mapping Alternative First Responder Models to Domestic Violence, 30 Va. J. Soc. Pol’y & L. 15, 19 (2023) (“Contrary to popular belief that the main role of police is to ‘fight crime,’ police function mostly as first responders to service calls involving people in various types of crises, including severe mental illnesses, substance abuse, homelessness, and DV.”); Barry Friedman, Are Police the Key to Public Safety?: The Case of the Unhoused, 59 Am. Crim. L. Rev. 1597, 1600 (2022) (“Part of the reason police are saddled with so many social problems is because, as the police themselves point out frequently, they are the only ones who respond around the clock, all days of the week and year.”); Barry Friedman, Disaggregating the Policing Function, 169 U. Pa. L. Rev. 925, 930 (2021) (describing “the actual problems the police are called out daily to address”); Eric J. Miller, Knowing Your Place: The Police Role in the Reproduction of Racial Hierarchy, 89 Geo. Wash. L. Rev. 1607, 1609 (2021) (describing the role of police in a broader project of maintaining “public order”); Madalyn K. Wasilczuk, Developing Police, 70 Buff. L. Rev. 271, 285–86 (2022) (“Popular media and political rhetoric imagine cops as crimefighters: intervening in serious, violent crimes-in-progress, chasing down suspects, engaging in combat, and using military-style equipment. But that’s not what police do. Police spend most of their time, even in large, urban centers, on motorized patrol, dealing with minor disturbances and traffic violations. . . . [T]he roles police are called upon to fill in those disputes are more often those of first responder, mediator, and social worker, rather than action movie hero.” (footnotes omitted)).

   [153]. Friedman, Disaggregating the Policing Function, supra note 152, at 948; see also Nirej Sekhon, Catchall Policing and the Fourth Amendment, 71 Duke L.J. Online 111, 112 (2022) (“The ‘catchall tradition’ has long defined American policing. Police direct traffic, resolve private disputes, help the sick and injured, do animal control, and far less frequently than one might think, they make arrests.” (footnotes omitted)); Eric J. Miller, The Moral Burdens of Police Wrongdoing, 97 Res Philosophica 219, 250 (2020) (“The majority of the patrol officer’s time is spent on tasks other than crime fighting, such as maintaining public order and promoting public welfare.”).

   [154]. Baughman, supra note 153, at 101–02 (footnotes omitted); see also Friedman, Disaggregating the Policing Function, supra note 152, at 949 (“Cops do remarkably little crime-fighting. ‘A major theme of the earliest studies concerning urban officer workload involved dispelling the popular myth that police spend most of their time protecting the ‘thin blue line’ between law and order.’”).

   [155]. For an extended argument that police serve this function, see generally Monica C. Bell, Anti-Segregation Policing, 95 N.Y.U. L. Rev. 950 (2020).

   [156]. For an extended argument that police serve this function, see generally Frank Donner, Protectors of Privilege: Red Squads and Police Repression in Urban America (1992).

[157]. See supra notes 1–3 and accompanying text.

   [158]. That’s one reason why the euphemistic “justice involved” as a label strikes me as having real descriptive utility (whatever its utility in humanizing or destigmatizing individuals). A person might be “justice involved” without ever having been a criminal defendant or been subject to a formal charge. The defining feature of the label isn’t that the individual occupies a specific role or status within the system; instead, the defining feature is just some point of contact or involvement. For a discussion of this label and its uses, see Tarra Simmons, Transcending the Stigma of a Criminal Record: A Proposal to Reform State Bar Character and Fitness Evaluations, 128 Yale L.J.F. 759, 759–61 (2019).

[159]. See infra notes 160–161 and accompanying text.

[160]. See, e.g., Jalila Jefferson-Bullock & Jelani Jefferson Exum, That Is Enough Punishment: Situating Defunding the Police Within Antiracist Sentencing Reform, 48 Fordham Urb. L.J. 625, 662 (2021) (“The true consequences of police force—that individuals are penalized or executed for their perceived objectionable responses to a police encounter—demonstrate it is more akin to punishment than seizure.”); Jelani Jefferson Exum, Presumed Punishable: Sentencing on the Streets and the Need to Protect Black Lives Through A Reinvigoration of the Presumption of Innocence, 64 How. L.J. 301, 347–48 (2021) (“[T]hose possibly legitimate functions of the police do not eliminate the consequences of the excessive force that has historically been used to deter objectionable behavior by Black Americans and express society’s retributive aims against the Black community. This is punishment. And when policing as punishment is coupled with a presumption that Black people should be punished, the presumption of innocence as a meaningful constitutional protection carries much promise.”); Donald F. Tibbs & Tryon P. Woods, Requiem for Laquan McDonald: Policing as Punishment and Abolishing Reasonable Suspicion, 89 Temp. L. Rev. 763, 779 (2017) (describing “a regime in which policing precedes law and serves as the primary modality for punishment”).

[161]. See Alexandra L. Klein, When Police Volunteer to Kill, 74 Fla. L. Rev. 205, 228 (2022) (describing this literature). But see Rachel A. Harmon, When Is Police Violence Justified?, 102 Nw. U. L. Rev. 1119, 1121 (2008) (arguing that policing and police use of force aren’t punishment).

   [162]. That is, it’s not just the hassling or the stops themselves that might be harmful. It’s that coming to expect the hassling and stops—to view them as routine—might be harmful in and of itself. I take some version of this claim to be a component of arguments about legal cynicism and legal estrangement.

[163]. Cf. Rachel A. Harmon, Why Arrest?, 115 Mich. L. Rev. 307, 313 (2016) (“By its nature, every arrest diminishes a citizen’s freedom . . . . This alone should lead to caution about arrests. But arrests also have more concrete consequences, and yet the legal tools we generally use to evaluate them are inadequate to consider whether those costs are justified. In the near term, arrests are often frightening and humiliating.”).

[164]. See, e.g.,Stephen L. Carter, Law Puts Us All in Same Danger as Eric Garner, Bloomberg (Dec. 4, 2014), https://www.bloomberg.com/opinion/articles/2014-12-04/law-puts-us-all-in-same-danger-as-eric-garner [https://perma.cc/56XB-VN3V] (“On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.”).

[165]. See Beth A. Colgan, Revenue, Race, and the Potential Unintended Consequences of Traffic Enforcement Reform, 101 N.C. L. Rev. 889, 958 (2023); Sam Levin, U.S. Police Have Killed Nearly 600 People in Traffic Stops Since 2017, Data Shows, Guardian (Apr. 21, 2022), https://www.theguardian.com/us-news/2022/apr/21/us-police-violence-traffic-stop-data [https://perma.cc/P67T-E2VS].

   [166]. For extensive analysis of these dynamics, see generally Amy E. Lerman & Vesla M. Weaver, Arresting Citizenship: The Democratic Consequences of Crime Control (2014); Traci Burch, Trading Democracy for Justice: Criminal Convictions and the Decline of Neighborhood Political Participation 75–104 (2013); Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054 (2017).

   [167]. Jonathan Ben-Menachem & Kevin T. Morris, Ticketing and Turnout: The Participatory Consequences of Low-Level Police Contact, Am. Pol. Sci. Rev. 1, 2, 6–10 (2022).

[168]. Cf. Harmon, supra note 161, at 1121 (“Because police uses of force are both determined and imposed by persons who are under threat, these acts are unlike punishment, the paradigmatic form of state coercion, which is detached, impersonal, and institutionally enacted.”).

   [169]. Recognizing these functions or logics doesn’t answer the question of whether policing is or could be a social good. Compare Trevor George Gardner, The Conflict Among African American Penal Interests: Rethinking Racial Equity in Criminal Procedure, 171 U. Pa. L. Rev. 1699, 1728–30 (2023) (describing policing as potentially consistent with—and important to advancing—the “African American security interest”), with India Thusi, Policing Is Not A Good, 110 Geo. L.J. Online 226, 249 (2022) (arguing that policing does not advance the security interests of marginalized communities).

[170]. See supra Part I.

   [171]. Eisha Jain, Arrests as Regulation, 67 Stan. L. Rev. 809, 815 (2015).

[172]. See United States v. Salerno, 481 U.S. 739, 747 (1987). But see Kolber, Unintentional Punishment, supra note 39, at 3(“I argue that the term ‘punishment’ includes not only intentional harsh treatment but certain unintentional harsh treatment as well. Hence the widely accepted view that punishment is an intentional infliction requires substantial caveats. Moreover, any justification of punishment that purports to address only intentional aspects of punishment is seriously incomplete.”).

   [173]. For a helpful example, consider this from Mayson: “Your annual income tax may be a greater burden than a fifty dollar fine for committing a simple battery, but it is generally agreed that the latter is punishment and the former is not.” See Mayson, supra note 40, at 317.

[174].Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963).

[175].Kovarsky, supra note 33, at 1434 (“I use ‘suffering’ to capture the experiential unpleasantness that punishments produce—although punishment itself is actually the state-imposed harshness or disability that produces the negative experience.” (citing David Gray, Punishment as Suffering, 63 Vand. L. Rev. 1619, 1625 (2010))).

[176]. Cf. Kolber, Unintentional Punishment, supra note 39, at 20(“Theorists disagree about how to characterize the harms of punishment. Some speak of punishment as an intentional infliction of suffering, some speak of it as an intentional limitation of a person’s liberties, and some speak of punishment as capturing both sorts of actions.”).

   [177]. For similar methodological inquiries into labels and language in criminal legal scholarship and policy debates, see generally Levin, After the Criminal Justice System, supra note 7; Benjamin Levin, Imagining the Progressive Prosecutor, 105 Minn. L. Rev. 1415 (2021); Benjamin Levin, Criminal Justice Expertise, 90 Fordham L. Rev. 2777 (2022).

[178]. See Kennedy, 372 U.S. at 168.

[179]. See supra note 175 and accompanying text.

   [180]. On the conceptual slipperiness of harm and the challenge of causation, see generally Bernard E. Harcourt, The Collapse of the Harm Principle, 90 J. Crim. L. & Criminology 109 (1999).

   [181]. To be fair, a capacious understanding of social meaning might help. But I still don’t think it captures many of the harms, injustices, or experiences associated with the criminal system. I don’t mean to suggest that intent is or should be irrelevant. Rather, my suggestion is that a focus on intent might distract from a needed critique of and engagement with the social and political forces that lead to ostensibly unintended harms. In this regard, I borrow an argument from the racial justice literature: An overemphasis on proving intentional bias fails to account for pervasive and damaging forms of implicit and structural bias. See, e.g., Daniel S. Harawa, The False Promise of Peña-Rodriguez, 109 Calif. L. Rev. 2121, 2123–24 (2021) (“While at first blush Peña-Rodriguez appears to be a significant step in eliminating racial bias from the jury, the decision is hardly a boon for racial justice. To the contrary, requiring proof of ‘overt racial bias’ showing that ‘racial animus was a significant motivating factor in the juror’s vote to convict’ to overcome an evidentiary rule ignores the reality that racism often manifests in subtle ways. It also elides the fact that it is hard, if not impossible, to know how racial bias motivates decision-making. As such, Peña-Rodriguez threatens to insulate the nuanced forms that racism most often takes from review.”); Ian F. Haney Lopez, Institutional Racism: Judicial Conduct and A New Theory of Racial Discrimination, 109 Yale L.J. 1717, 1844 (2000) (“Perhaps similar levels of moral culpability and remedial obligation do not attach to the person who engages in [reliance on stereotypes], rather than purposeful, racism. And perhaps institutional racism will prove far more difficult to disestablish than the intentional sort. Nevertheless, nature did not institutionalize racial practices: We did, and that imposes on us the responsibility for their persistence and remediation.”).

[182]. See supra Part II.A.

   [183]. Foucault, supra note 101, at 91.

[184]. Id. at 6–8.

[185]. Id. at 68–69.

   [186]. Foucault, supra note 26, at 303.

   [187]. Foucault, supra note 101, at 195.

[188]. See Jessica M. Eaglin, Technologically Distorted Conceptions of Punishment, 97 Wash. U. L. Rev. 483, 541 (2019) (arguing that “punishment is an important arm in a shifting governmentality”).

   [189]. For example, in his seminal work on social control, criminologist Stanley Cohen observes that structures of hierarchy and power are ubiquitous: “[T]eachers in schools, warders in prisons, psychiatrists in clinics, social workers in welfare agencies, parents in families, policemen on the streets, and even bosses in the factories are all, after all, busy doing the ‘same’ thing.” Stanley Cohen, Visions of Social Control: Crime, Punishment, and Classification 2 (1985). As Cohen acknowledges, though, that observation needn’t lead us to conclude that each of those structures or relationships is similarly concerning or in need of similar reform. See id. at 3.

[190]. Cf. Bernard E. Harcourt, The Illusion of Free Markets 41 (2011) (“The punitive society we now live in has been made possible by . . . this belief that there is a categorical difference between the free market, where intervention is inappropriate, and the penal sphere, where it is necessary and legitimate.”).

[191]. See generally Bell, supra note 166.

[192]. See generally id. (describing this phenomenon).

[193].Nicole Kaufman, Joshua Kaiser & Cesraéa Rumpf, Beyond Punishment: The Penal State’s Interventionist, Covert, and Negligent Modalities of Control, 43 L. & Soc. Inquiry 468, 469 (2018).

[194]. Id.

[195]. Id.

[196]. Id.

[197]. Id.

[198]. Id. (emphasis omitted).

[199]. Id.

   [200]. It also might be helpful to consider an additional four modalities that Monica Bell describes as a vehicle for understanding marginalized communities’ relationship to the criminal system:subordination, consumption, resistance, and transformation.Monica C. Bell, The Community in Criminal Justice: Subordination, Consumption, Resistance, and Transformation, 16 Du Bois Rev. 197, 197–98 (2019).

[201].Kaufman, Kaiser & Rumpf, supra note 193, at 471 (emphasis omitted).

[202]. See supra Part II.B.1.

[203]. See supra Part II.B.2.

[204]. See supra Part II.B.1.

[205]. See supra Part II.B.1.

   [206]. To clarify, it might be helpful to distinguish between two types of doctrinal scholarly arguments. The first resembles the sort of argument that a lawyer would make in a brief or motion: Looking at the relevant legal authorities should lead a court to rule in the lawyer’s favor. So, for example, an argument of this sort might rely on “originalist” methodology and claim that the Supreme Court’s precedent and a body of historical sources support a conclusion that immigration detention is punishment, regardless of whether the author believes that originalism is a theoretically defensible or normatively desirable methodology. An author might structure their claim by way of analogical reasoning and build a claim with an eye to constructing the sort of legal argument that might convince a judge. In contrast, the second sort of doctrinal argument is conceptual or provocative, designed more to illuminate than to persuade. The author might claim that if judges were to take their own stated commitments seriously, they might arrive at an unexpected result. Or they might argue that—taken to their extreme—uncontroversial legal principles could lead to radical results. For example, a scholar might argue that the constitutional treatment of bills of attainder might tell us something about the evil of restricting parental rights for people with criminal records. Perhaps doing so could shed light on the problems with collateral consequences that affect parents, even if the author didn’t think this was an argument that might sway judges.

          When it comes to the first category of arguments, it’s both fair and important to read them as we would read a brief or other form of legal argument. When it comes to the latter category, it is less important because I see the objective and the audience as different. In the former context, the current composition of the judiciary—the dominant politics, ideologies, and approaches—are critically important. In the latter context, those considerations are less relevant because the claim doesn’t rely on what a given judge or judges actually might do. So the focus of my critique in this Section is more the first category than the second. Nevertheless, I also argue that the second category has its limitations because I’m increasingly skeptical that understanding more institutions and practices as punishment actually helps us understand the criminal system (and the social world) better.

[207]. See supra Part II.B.1.

[208]. See supra notes 122–126 and accompanying text.

[209]. See, e.g., Does #1–5 v. Snyder, 834 F.3d 696, 705–06 (6th Cir. 2016) (describing as punitive “[a] regulatory regime that severely restricts where people can live, work, and ‘loiter,’ that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe”); Riley v. N.J. State Parole Bd., 219 N.J. 270, 297 (2014) (concluding that “[t]he retroactive application of [the Sex Offender Monitoring Act, which imposed round-the-clock electronic monitoring,] to [the formerly incarcerated person] twenty-three years after he committed the sexual offense at issue and after he fully completed his criminal sentence violates the Ex Post Facto Clauses of the United States and New Jersey Constitutions”); Abigail E. Horn, Wrongful Collateral Consequences, 87 Geo. Wash. L. Rev. 315, 322 n.53 (2019) (collecting cases).

[210]. See, e.g., Smith v. Doe, 538 U.S. 84, 96 (2003) (concluding that the Alaska Sex Offender Registration Act was regulatory, not punitive); Kansas v. Hendricks, 521 U.S. 346, 370–71 (1997) (holding that Kansas’s Sexually Violent Predator Act “does not impose punishment” and “thus its application does not raise ex post facto concerns”); Virsnieks v. Smith, 521 F.3d 707, 720 (7th Cir. 2008) (“[T]he Wisconsin sexual offender registration statute is considered remedial, rather than punitive, in nature.”); Calhoun v. Att’y Gen. of Colo., 745 F.3d 1070, 1074 (10th Cir. 2014) (“[T]he Colorado sex-offender registration requirements are remedial, not punitive.”); see also Katherine A. Mitchell, Of What Consequence?: Sexual Offender Laws and Federal Habeas Relief, 75 U. Miami L. Rev. 76, 105 n.166 (2020) (collecting sources).

   [211]. Of course, there could be such a change in judicial reasoning, court composition, or both. The history of U.S. constitutional law features many dramatic changes in course, and advocates have pursued a range of creative litigation strategies (often backed by political or social movements) that have upset longstanding rules.

   [212]. While I remain less optimistic, Jenny Roberts has argued that there might be “hints of a shifting civil-criminal line.” Jenny Roberts, Gundy and the Civil-Criminal Divide, 17 Ohio St. J. Crim. L. 207, 214 (2019) (footnotes omitted). “Although the Supreme Court has leaned heavily towards ‘civil’ designations when determining the nature of particular consequences,” Roberts argues that the Court “has recently recognized current realities that may shift which consequences fall on which side of the line.” Id.; see also Gabriel J. Chin, Collateral Consequences and Criminal Justice: Future Policy and Constitutional Directions, 102 Marq. L. Rev. 233, 260 (2018) (observing that proposals to reform collateral consequences “seem like possibilities rather than fantasies”).

   [213]. Indeed, it might be that these arguments and the continued use of the punishment frame might have greater chances of success in state courts, where different politics are at play. For one such example, see Riley, 219 N.J. 270, and accompanying text to supra note 209.

[214]. Cf. Weisburd, supra note 61, at 150–51 (“Punitive surveillance, however, reveals a significant but undertheorized gap in punishment jurisprudence: how to define, regulate, and limit punitive and carceral experiences that do not occur behind prison walls. Beyond the Eighth Amendment and the Ex Post Facto Clause, there are no obvious backstops on the erosion of fundamental rights and liberties that are part and parcel of punitive surveillance.”).

[215]. See Joshua Kaiser, We Know It When We See It: The Tenuous Line Between “Direct Punishment” and “Collateral Consequences,” 59 How. L.J. 341, 343 (2016) (describing the legal consequences of classifying collateral consequences as “non-punitive”).

   [216]. As in the context of the ex post facto sex offender registry cases. See supra note 210 and accompanying text.

[217]. See supra Part II.B.1.

[218]. See William W. Berry III, Cruel and Unusual Non-Capital Punishments, 58 Am. Crim. L. Rev. 1627, 1628 (2021) (“In the modern era, the Supreme Court has rendered the Eighth Amendment a dead letter with respect to non-capital, non-juvenile life-without-parole sentences. Its cases have erected a gross disproportionality standard that seems insurmountable in most cases, even for draconian and excessive sentences.” (footnote omitted)).

   [219]. It’s also worth noting that one of the greatest successes for advocates in this area—requiring defendants to be informed of certain collateral consequences before pleading guilty—doesn’t rely on a punishment framework at all. See Padilla v. Kentucky, 559 U.S. 356 (2010). But see supra note 209 and accompanying text (discussing successful ex post facto challenges).

   [220]. 582 U.S. 98, 109 (2017).

[221]. Id. at 108.

   [222]. Weisburd, supra note 61, at 1309, 1312.

[223]. See Smith v. Bauman, No. 5:10-cv-11052, 2018 WL 1399312, at *4 (E.D. Mich. Mar. 19, 2018) (“If life imprisonment without any possibility of parole for a non-violent offense is not cruel and unusual punishment, lifetime electronic monitoring for the violent crime of criminal sexual conduct is not cruel and unusual punishment.”).

[224]. See Richard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: “Proportionality” Relative to What?, 89 Minn. L. Rev. 571, 572–74 (2005) (collecting cases).

[225]. See, e.g., Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding that execution of a person with developmental disability was unconstitutional); Roper v. Simmons, 543 U.S. 551, 577 (2005) (holding that it was unconstitutional to execute a person for crimes committed while they were under eighteen).

   [226]. For example, in Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court case that outlawed the use of death sentences for juveniles, featured a majority opinion by Justice Kennedy, joined by Justices Breyer, Ginsburg, Souter, and Stevens. In Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court opinion that banned the use of life without parole sentences for juveniles featured a majority opinion authored by Justice Kennedy, joined by Justices Breyer, Ginsburg, and Stevens. Because of changing Supreme Court composition, sentencing scholar William Berry contends that “[f]uture expansion of the Eighth Amendment also seems unlikely.” Berry, supra note 218, at 1201, 1205. Nevertheless, differences in state constitutions and state judicial politics mean that “the imposition of constitutional limits on excessive criminal sentences is still possible.” Id.

   [227]. 603 U.S. 520, 546–47 (2024).

[228]. See supra note 119 and accompanying text.

[229]. See Levin, Criminal Employment Law, supra note 98.

   [230]. Or, if legislators and sentencing commissions were to mandate it.

   [231]. For an extensive list of collateral consequences, see generally Collateral Consequences Inventory, Nat’l Inventory of Collateral Consequences of Conviction, https://niccc.nationalreentryresourcecenter.org/ [https://perma.cc/RYY3-SE5K].

   [232]. On the role of “informal collateral consequences,” see Wayne A. Logan, Informal Collateral Consequences, 88 Wash. L. Rev. 1103, 1106 (2013).

   [233]. In the punishment theory literature, scholars disagree on the extent to which foreseeable harms that a sentencing judge doesn’t intend to impose (usually brutal conditions of confinement) should be considered “punishment.” See Kolber, supra note 39, at 2–3 (“Some scholars deny these obligations . . . [and] claim that we need not address unintentional aspects of punishment, like the bad experiences associated with incarceration, because these side effects are not imposed intentionally and are therefore not punishment. Even if we knew precisely how sentences would affect prisoners, so the argument goes . . . we need not consider how prison affects them.”).

[234]. Cf. id. at 18 (“Although we sometimes foresee harms that are virtually certain to befall a prisoner, other times we merely foresee risks of harm. For example, a judge might reasonably foresee that a particular offender will face a higher risk of physical or sexual violence in prison than outside prison. If so, the state ought to have some justification for increasing the offender’s risk of harm.”).

   [235]. There also might be benefits for policymakers, advocates, academics, reporters, and members of society at large because a more detailed record of judges’ decision-making processes might shed more light on how criminal sentencing actually works and how sentencing policy and practice might be reformed.

   [236]. To be clear, this outcome still might be an improvement over the status quo, as it would provide at least a bit more transparency into the sentencing process and an additional opportunity to challenge judicial conduct viewed as arbitrary or unlawful. Cf. Gabriel J. Chin, Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea, 54 How. L.J. 675, 691 (2011) (“[C]lients may well feel they have been treated more fairly and respectfully by the system if serious legal consequences they face do not come as complete surprises.”).

[237]. See Chin, supra note 212, at 259.

   [238]. For a related argument regarding economic critiques of mass incarceration, see generally Jessica M. Eaglin, The Categorical Imperative as a Decarceral Agenda, 104 Minn. L. Rev. 2715, 2739–40 (2020).

   [239]. It’s worth noting that a handful of scholars who have bucked the trend to characterize more sanctions as punishment have justified their move as a step towards obtaining greater procedural protections. See Kovarsky, supra note 33, at 1433; Mayson, supra note 40, at 340; Carol S. Steiker, Foreword: The Limits of the Preventive State, 88 J. Crim. L. & Criminology 771, 776–78 (1998).

   [240]. Of course, there are a host of different empirical questions here. It’s different to ask whether a specific advocacy campaign led to a specific policy change than it is to ask whether a given style of advocacy changed public opinion, or whether specific language altered the intensity of opinion or preference. Which of these questions is most important necessarily depends on our own priors—our vision of politics and of social change.

   [241]. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).

   [242]. For an account of other scholars’ use of the analogy prior to the publication of Alexander’s book, see generally Forman, Racial Critiques, supra note 4, at 25.

[243]. See generally Alexander, supra note 241 (arguing that mass incarceration perpetuates racial subordination).

[244]. See, e.g., Dylan Rodríguez, Abolition as Praxis of Human Being: A Foreword, 132 Harv. L. Rev. 1575, 1598 (2019) (noting that “numerous critics have incisively and rigorously outlined the book’s analytical and methodological shortcomings . . . .”); Jonathan Wood, Note, The Old Boss the Same as the New Boss?: Critiques and Plaudits of Michelle Alexander’s New Jim Crow Metaphor, 7 Geo. J.L. & Mod. Critical Race Persp. 175, 175–76 (2015) (collecting critiques).

   [245]. Forman, Racial Critiques, supra note 4, at 34.

   [246]. Levin, The Consensus Myth, supra note 4, at 2784 (citingGottschalk, supra note 17, at 126–30; John Pfaff, Locked In: The True Causes of Mass Incarceration-and How to Achieve Real Reform 5–6, 21 (2017); Forman, Racial Critiques, supra note 4, at 23; Benjamin Levin, Guns and Drugs, 84 Fordham L. Rev. 2173, 2194 (2016); Anders Walker, The New Jim Crow? Recovering the Progressive Origins of Mass Incarceration, 41 Hastings Const. L.Q. 845, 846 (2014)).

   [247]. Levin, The Consensus Myth, supra note 4, at 278–79 (citingPfaff, supra note 246 at 22; German Lopez, Why You Can’t Blame Mass Incarceration on the War on Drugs, Vox (May 30, 2017), https://www.vox.com/policy-and-politics/2017/5/30/15591700/mass-incarceration-john-pfaff-locked-in [https://perma.cc/Z8GV-THNT]).

   [248]. Forman, Racial Critiques, supra note 4, at 60.

   [249]. Levin, The Consensus Myth, supra note 4, at 279 (citingJames Forman, Jr., Locking Up Our Own: Crime and Punishment in Black America (2017); Michael Javen Fortner, Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment (2015); Naomi Murakawa, The First Civil Right: How Liberals Built Prison America (2014); Forman, Racial Critiques, supra note 4, at 36).

   [250]. Levin, The Consensus Myth, supra note 4, at 279 (citingForman, Racial Critiques, supra note 242, at 23; Walker, supra note 246, at 848–55).

   [251]. Forman, Racial Critiques, supra note 4, at 34.

[252]. See Gottschalk, supra note 17, at 165–69 (criticizing reformers’ focus on those who have committed “nonviolent, nonserious, and nonsexual” crimes); Pfaff, supra note 246, at 23 (“[T]he rhetoric and tactics used to push through reforms for lower-level offenses often explicitly involve imposing even harsher punishments on those convicted of violent crimes.”).

   [253]. Forman, Locking Up Our Own, supra note 249, at 230.

[254]. See, e.g., Gottschalk, supra note 17, at 3 (“[T]he contributions of Alexander’s The New Jim Crow cannot be underestimated. No other book has been so vital in making the problem of the carceral state starkly visible to the wider public and in rallying members of disadvantaged communities and other groups to take on the project of dismantling it.”); Richard Delgado & Jean Stefancic, Critical Perspectives on Police, Policing, and Mass Incarceration, 104 Geo. L.J. 1531, 1534–36 (2016) (calling the book “a modern classic” and arguing that “The New Jim Crow makes a notable contribution to public discourse, shedding light on how society became trapped in the current web of overzealous punishment and then pointing the way out”).

   [255]. Katherine Macfarlane, The New Jim Crow’s Equal Protection Potential, 27 Wm. & Mary Bill Rts. J. 61, 62 (2018) (quoting Leonard Pitts, Jr., The New Jim Crow Alive and Thriving, Miami Herald (Sep. 12, 2014), http://www.miamiherald.com/opinion/opn-columns-blogs/leonard-pitts-jr/article1939330.html [https://perma.cc/W2PG-SE7V]).

   [256]. Cornel West, Foreword to Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness ix (rev. ed. 2012).

   [257]. That is, Jim Crow was wrong, so mass incarceration must be too.

[258]. See Nirej Sekhon, The Chokehold, 57 U. Louisville L. Rev. 43, 57 (2018) (“The phrase [‘The New Jim Crow’] thus functions as a bridge linking a deep well of inherited moral indignation with the institutional practices of the present.”).

   [259]. Forman, Locking Up Our Own, supra note 249, at 220.

[260]. Id. (quoting Public Hearing Before the Comm. on the Judiciary and Public Safety on the Simple Possession of Small Quantities of Marijuana Decriminalization Amendment Act of 2013, D.C. Council 3, 50 (Oct. 24, 2013) (statement of David Grosso, Council Member)).

[261]. But see David E. Patton, Criminal Justice Reform and Guns: The Irresistible Movement Meets the Immovable Object, 69 Emory L.J. 1011, 1014 (2020) (noting that Alexander’s work and the rhetoric of carceral critique had “entered the mainstream discourse” but that “[a]ctual reforms have been slow to follow the discourse”).

[262]. Seesupra note 1.

[263]. Cf. Macfarlane, supra note 255, at 83 (“[M]y study of the ways federal courts have cited The New Jim Crow suggests that there is a self-consciousness to the way federal courts cite the book. They are aware of its existence and its impact, but do not always engage with it in a meaningful way. Aside from an outlier district court opinion, The New Jim Crow has yet to impact a federal case’s outcome.”).

[264]. See generally Benjamin Levin & Kate Levine, Redistributing Justice, 124 Colum. L. Rev. 1531, 1534 (2024) (describing a “selective reliance” on the carceral system that is “widespread” in progressive spaces).

[265]. See Alex Kreit, The Opioid Crisis and the Drug War at a Crossroads, 80 Ohio St. L.J. 887, 906 (2019) (noting “growing calls to revive” the drug war due to increasing opioid-related deaths); Jennifer D. Oliva & Taleed El-Sabawi, The “New” Drug War, 110 Va. L. Rev. 1103, 1109 (2024) (“We nonetheless caution against any conclusion that the War on Drugs has ended. It has not. It has merely been retooled, recalibrated, and reframed by health-centric rhetoric.”).

   [266]. Some radical critics have suggested that these limitations are the result of Alexander’s “reformist” frame to questions of how to respond to the injustices that she identifies. See Rodríguez, supra note 244, at 1600.

   [267]. That is, opposing the criminalization of marijuana possession or the harsh punishment of “non-violent offenders” doesn’t necessitate embracing a sweeping critique of criminal law and punishment.

   [268]. Indeed, this is one of the challenges of assessing the utility of any given label, frame, or advocacy strategy. As a result, it’s not always clear how to proceed: Past failures might presage future failures, or they might represent necessary growing pains on the way to success. For example, abolitionists Ruth Wilson Gilmore and Craig Gilmore have argued that the phrase “prison industrial complex”—popular among radical critics—“has not fulfilled its potential to help people theorize adequately how the [prison industrial complex] shapes political and social life for everyone. As a result, it has yet to become a broadly useful tool in mobilizing opposition to the complex’s continued expansion.” Ruth Wilson Gilmore & Craig Gilmore, Restating the Obvious, in Indefensible Space: The Architecture of the National Insecurity State 141, 150 (Michael Sorkin ed., 2008). Despite their concern that the phrase has been “hollow[ed] out,” Gilmore and Gilmore continue to deploy it as a label or frame in their scholarship and advocacy. Id.; see, e.g., Ruth Wilson Gilmore, Abolition Geography: Essays Towards Liberation 323 (2022).

[269]. See supra notes 251–252 and accompanying text.

[270]. See supra note 249 and accompanying text.

   [271]. Drawing from the work of social theorist Stanley Cohen, criminologist Hadar Aviram helpfully distinguishes between the two approaches to understanding penal policy: “Good (but Complicated) Intentions—Disastrous Consequences” accounts and “Discipline and Mystification” accounts. See Aviram, supra note 19, at 250. Aviram cautions against approaches that prioritize “[i]dentifying ‘bad guys’” and “imputing structural evils to individual actors.” Id. at 252. “[T]elling a monolithic story of bad intentions and unscrupulous class and race interests,” she argues, “misses out on rich detail, which is better exposed in works that take criminal justice reformers on their own terms.” Id. at 253–54.

[272]. See id. at 252 (collecting examples).

[273]. See, e.g., Rachel Herzing, Commentary, “Tweaking Armageddon”: The Potential and Limits of Conditions of Confinement Campaigns, 41 Soc. Just. 190, 193–94 (2014) (“Far from being broken . . . the prison-industrial complex is actually efficient at fulfilling its designed objectives—to control, cage, and disappear specific segments of the population.”); Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform, 104 Geo. L.J. 1419, 1426 (2016) (“The Court has sanctioned racially unjust criminal justice practices, creating a system where racially unjust police conduct is both lawful and how the system is supposed to work.”).

[274]. See Aviram, supra note 19, at 250–57. Cf. Rubin, supra note 19, at 740 (“Many of the (mostly) men shaping early penal developments were (like others before and since) simultaneously benevolent true believers, self-interested rational actors, and unscrupulous bad actors. The question for us as researchers is to figure out how actors at the time reconciled these contradictions: how they made sense of their seemingly contradictory concern for profit, use of torture they otherwise condemned, and self-perceptions as benevolent gentlemen.”).

[275]. See, e.g., Erin R. Collins, The Problem of Problem-Solving Courts, 54 U.C. Davis L. Rev. 1573, 1628 (2021) (“Problem-solving courts are not, as judges often assure skeptics, ‘get out of jail free’ programs. The courts, rather, are just a different delivery system for this message about the primacy of carceral punishment. Indeed, prevailing problem-solving court models require the existence of a sentence of incarceration as a backdrop to their operation, as an ever-looking threat that judges can strategically invoke to encourage compliance with court programs.” (footnotes omitted)); Jessica M. Eaglin, The Drug Court Paradigm, 53 Am. Crim. L. Rev. 595, 606 (2016) (noting “the ‘this is still punishment’ aspect of the courts”); Allegra M. McLeod, Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law, 100 Geo. L.J. 1587, 1591 (2012) (arguing that “specialized criminal courts threaten to produce a range of unintended and undesirable outcomes: unnecessarily expanding criminal surveillance, diminishing procedural protections, and potentially even increasing incarceration”); Eric J. Miller, Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 Ohio St. L.J. 1479, 1502 (2004) (explaining how punishment interacts with purportedly “therapeutic” drug courts).

   [276]. “This alternative policy isn’t actually very good and may well replicate the injustices of the status quo” wouldn’t be much of a pitch.

   [277]. This observation represents a core component of the literature on “nonreformist reforms”—practical, incremental steps that are viewed as consistent with a radical project. See, e.g.,Thomas Mathiesen, The Politics of Abolition Revisited 231 (2015) (“[T]he short-term reforms which you work for . . . as a road to the long-term goal of abolition . . . must also consistently be of an abolishing kind.”); Gilmore & Gilmore, Restating the Obvious, supra note 268, at 141, 145 (describing nonreformist reforms as “systemic changes that do not extend the life or breadth of deadly forces such as prisons”); André Gorz, Strategy for Labor: A Radical Proposal 7–8 (Martin A. Nicolaus & Victoria Ortiz trans., 1967) (outlining the distinction between reformist reforms and nonreformist reforms); Amna A. Akbar, Non-Reformist Reforms and Struggles over Life, Death, and Democracy, 132 Yale L.J. 2497, 2527 (2023) (“[A] non-reformist reform aims to undermine the political, economic, and social system or set of relations as it gestures at a fundamentally distinct system or set of relations in relation or toward a particular ideological and material project of world-building.” (footnotes omitted)). Pragmatic incrementalism might be consistent with radicalism; it just depends on what “pragmatic incrementalism” actually looks like.

   [278]. For thoughtful accounts of the relationship between short-term harm reduction and long-term radicalism, see generally Daniel S. Harawa, In the Shadows of Suffering, 101 Wash. U. L. Rev. 1847 (2024); Jamelia Morgan, Abolition in the Interstices, LPE Project (Dec. 14, 2023), https://lpeproject.org/blog/abolition-in-the-interstices/ [https://perma.cc/4PU7-WCUY].

[279]. See supra notes 193–201 and accompanying text. I also see this move as consistent with the Foucauldian project of “break[ing] [punishment] down into its constituent elements and . . . find[ing] the relations of power that underlie it and make it possible.” Foucault, supra note 101, at 5.

   [280]. Steiker, supra note 11, at 812.

[281]. Id.

   [282]. For an extended discussion of this question as it applies to contemporary scholarship and activism, see generallyLevin, Criminal Law Exceptionalism, supra note 138.