Publication Date

2023

Abstract

Is punishment generally exempt from the Constitution? That is, can the deprivation of basic constitutional rights—such as the rights to marry, bear children, worship, consult a lawyer, and protest—be imposed as direct punishment for a crime and in lieu of prison, so long as such intrusions are not “cruel and unusual” under the Eighth Amendment? On one hand, such state intrusion on fundamental rights would seem unconstitutional. On the other hand, such intrusions are often less harsh than the restriction of rights inherent in prison. If a judge can sentence someone to life in prison, how can a judge not also have the power to strip someone of the right to marry, or speak, as direct punishment? Surprisingly, as this Article reveals, existing law offers no coherent explanation as to why rights-violating punishments somehow escape traditional constitutional scrutiny. Yet the question is critical as courts—often in the name of decarceration—increasingly impose non-carceral punishments that deprive people of constitutional rights.

This Article argues that “punishment exemption”—the assumption that criminal punishment is exempt from traditional constitutional scrutiny—has no legal basis. Drawing on original empirical research, this Article first exposes a maze of modern noncarceral punishments that infringe on constitutional rights, justified by nothing more than the assertion that they are punishment and therefore permissible. If both legal and limitless, these rights restricting punishments erase basic constitutional protections for people on court supervision and risk re-entrenching the very racial, gender, and economic inequities that decarceration efforts aim to address. This Article then explains, based on the Constitution’s plain language and well-established constitutional principles, that punishment is not exempt from the Constitution. Rather, all punishment, including imprisonment, is state action subject to traditional constitutional scrutiny. Properly understood as such, many punishments—both carceral and non-carceral—may be unconstitutional.

Document Type

Article

Publication Title

California Law Review

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