Constitutional orders punish — and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political theories of punishment.
Using the jurisprudence of the United States Supreme Court as representative of a global trend in constitutional punishment doctrine, this Article engages details of case law to show how the integration of reactive and proactive approaches might work. The differences between the two approaches and the theories that inform them may seem too subtle to matter. They stand, however, across a large constitutional space, and their differences translate into important doctrinal, normative, and practical consequences. Nonetheless, despite the differences between these competing approaches, this Article contends that their integration in the articulation of the foundations of punishment as a legitimate constitutional practice are well within the reach of existing constitutional doctrines in liberal democracies and beyond.
The Article argues that constitutional punishment ought to rest upon five principles. First, constitutional orders must take constitutional ownership of punishment as coerced vulnerability created and imposed by such orders. Second, state violence in the form of punishment must be conceived and designed as cruelty-free, and practiced under this regulative ideal. Third, respect for individuals as the embodiment of dignity must be actively affirmed through, rather than simply not violated by, punishment. Fourth, this affirmation of human dignity through punishment entails that punishment must meet morally justified penological objectives and take seriously the moral agency of those subject to it. Finally, punishment that fails the above conditions must be fully redressable and adequate preventative remedies must be available and accessible. If doctrine is reformed just enough to rest on these principles, the necessary conditions of legitimate constitutional punishment would be met.
Paulo Barrozo. "Reconstructing Constitutional Punishment." Washington University Jurisprudence Review 6, no.2 (2014): 175-256.