Punishment versus Treatment
All systems of criminal law represent a shared commitment to acquitting the innocent and punishing the guilty. This shared commitment confers upon them a single unifying purpose that centers on the institution of punishment. Without punishment and institutions designed to measure and carry out punishment, there is no criminal law. It is fair to say, then, that the institution of punishment provides the distinguishing features of criminal law.
The problem is: What is punishment? Not every form of coercion, not every sanction, constitutes punishment. Not even coerced confinement provides an adequate signal that the criminal law has come into play. One can lock people up for many reasons--for example, quarantine for disease, commitment for mental illness. Not all seizures of the person are equivalent to the old fashioned punishment of flogging. Grabbing a person to prevent him from committing suicide is neither assault nor punishment but rather beneficial coercion. Understanding criminal law, therefore, requires that we probe the distinction between punishment and forms of coercion, expressing a benevolent desire to aid the person affected. With some risk of oversimplification, I refer to all these alternative, beneficial uses of coercion as "treatment."
The elaboration of the difference between punishment and treatment depends largely on the context and purpose of legal analysis. The argument tracks, therefore, the analysis in chapter 1 on the distinction between substance and procedure. Fathoming the contours of punish-