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.