Law as Punishment/Law as Regulation

Law as Punishment/Law as Regulation

Law as Punishment/Law as Regulation

Law as Punishment/Law as Regulation


Law depends on various modes of classification. How an act or a person is classified may be crucial in determining the rights obtained, the procedures employed, and what understandings get attached to the act or person. Critiques of law often reveal how arbitrary its classificatory acts are, but no one doubts their power and consequence.

This crucial new book considers the problem of law's physical control of persons and the ways in which this control illuminates competing visions of the law: as both a tool of regulation and an instrument of coercion or punishment. It examines various instances of punishment and regulation to illustrate points of overlap and difference between them, and captures the lived experience of the state's enterprise of subjecting human conduct to the governance of rules. Ultimately, the essays call into question the adequacy of a view of punishment and/or regulation that neglects the perspectives of those who are at the receiving end of these exercises of state power.


Seven-year-old Megan Kanka lived with her parents and two siblings on a quiet street in suburban Hamilton Township, New Jersey. On July 29, 1994, Megan was lured into the home of a neighbor, Jesse Timmendequas, on the promise that she could visit with his new puppy. Shortly afterward, thirty yards from her front doorstep, Timmendequas raped and murdered her. Unbeknownst to Megan’s parents or anyone else in their neighborhood, fifteen years earlier he had pled guilty to the attempted aggravated sexual assault of a five-year-old girl in another New Jersey town. He was given a suspended sentence but, after failing to go to counseling, he went to prison for nine months. in 1981, he pled guilty to the assault of a seven-year-old girl and was imprisoned for six years.

Reaction to Megan’s death and Timmendequas’s arrest was immediate and explosive. More than 400,000 citizens signed a petition addressed to the New Jersey state legislature demanding enactment of legislation that would increase penalties for sex offenders, require them to register with local law enforcement whenever they established a new residence, and provide notification of the whereabouts of sex offenders to the communities in which they reside. Eightynine days later the legislature enacted what was to become known as “Megan’s Law.”

In 1996, President Clinton signed the Jacob Wetterling Crimes against Children’s Act, one provision of which required every state to develop a procedure for notifying the public when a person convicted of certain crimes is released near their homes. Today each of the fifty states requires some form of public notification, and, as the discovery of Jaycee Dugard, who survived being kidnapped at age 11 and held captive for 18 years, in August 2009 demonstrates, the . . .

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