Why Is It Wrong To Punish Thought?

Abstract

It's a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts-for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery. In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one. The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn't simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished. The proposed justification also shows how thought's immunity from punishment relates to a principle of freedom of mind, a linkage often assumed but never explained. In explaining it here, I argue that thought's penal immunity springs from the interaction of two principles of broad significance: one familiar but poorly understood, the other seemingly unnoticed. The familiar principle is that persons possess a right of mental integrity, a right to be free from the direct and forcible manipulation of their minds. The unnoticed principle, which I label the Enforceability Constraint, is that the state's authority to punish transgressions of a given type extends no further than its authority to thwart or disrupt such transgressions using direct compulsive force. Heretofore unexamined, the Enforceability Constraint is in fact a signal feature of our system of criminal administration, governing the scope and limits of the criminal law.