Academic journal article
By Ristroph, Alice
Journal of Criminal Law and Criminology , Vol. 98, No. 4
With respect to states of mind, we are of many minds. Sometimes we think mental states matter, and sometimes we think they don't. Most simply, bare voluntariness is usually viewed as a threshold requirement for legal or moral responsibility. Perhaps it seems obvious that purposeful acts should be treated differently than mere accidents, an intuition reflected in Holmes's quip that "even a dog distinguishes between being stumbled over and being kicked." (1) In some contexts, legal standards not only ask whether an action was voluntary rather than accidental, but inquire further and attempt to determine the actor's specific purposes or reasons for action. In still other circumstances, the law denies the relevance of subjective mental states altogether by imposing strict liability standards or "objective" tests. Again, we are of many minds: sometimes we forgive or even admire those who mean well but do badly; at other times we say that good intentions pave the road to hell.
Inquiries into purpose, intention, and motivation are especially prevalent in constitutional doctrine. (2) Though it is not intuitively obvious that the government entities regulated by these doctrines can be said to possess "states of mind" at all, courts have developed various methods to assess governmental motives or purposes. (3) As many scholars have noted, motives play central roles in First and Fourteenth Amendment analysis. (4) The difference between a valid regulation of speech and a violation of the First Amendment might turn on whether the state intends to suppress particular ideas. (5) The permissibility of public displays of religious symbols can rest on whether the state intends to promote religion. (6) The constitutionality of state action with disparate impact by race or gender may turn on whether the state intends to discriminate. (7) Courts and academic commentators alike frequently refer to Holmes and the dog's distinction to explain these rules: the Constitution is violated not when an individual is stumbled over by state actors, but only when she is kicked. (8)
Of course, the state doesn't often literally kick its citizens. But in the enforcement of criminal laws, it regularly uses physical force against them. And in the constitutional doctrines that apply to the most systematic and severe uses of force--imprisonment and execution--state intentions matter greatly. (9) Constitutional evaluations of prison and death sentences begin with questions about the state's specific "penological purpose." When those already incarcerated challenge specific events or conditions within a prison, constitutional doctrine requires an assessment of prison officials' intentions. In sharp contrast to the law of constitutional criminal procedure, which often eschews inquiries into police officers' subjective mental states, the law of punishment frequently asks what state actors intended. (10)
This Article takes up two questions concerning state intentions, one inquiry narrow and doctrinal, the other much broader and more conceptual. With respect to doctrine, the Article examines the substantial, but so far overlooked, role of intent analysis in the constitutional law of punishment. This task is newly important, as it is only recently becoming evident that there is a constitutional law of punishment, distinct from the constitutional law of arrests, investigations, and trial procedure. (11) As the United States' prison population continues to expand and as death sentences continue to capture substantial public and judicial attention, many of the most pressing controversies in criminal justice concern not the ways in which government investigates or prosecutes crime, but what it does to criminals after conviction. (12) In this context, we need to learn the constitutional law of punishment, and an important first lesson is the ways in which a state's penological purposes (or lack thereof) determine the constitutionality of punishment. …