Research Paper Number
criminal sanctions; private punishment; state agency
Some theorists argue that a justification of criminal punishment presupposes a theory of state power. Although the state is typically assigned the task of inflicting criminal sanctions, the mere fact that the criminal deserves to be punished cannot in itself justify the infliction of punishment by the state, as non-state agents could presumably give people their just deserts. One way of addressing the plea for a theory of state power would be to suggest that state-inflicted sanctions are justified simply on the grounds that the state is more likely than other agents to determine accurately what a wrongdoer justly deserves and to inflict a just sanction on those who deserve it. Hence, the state's role in inflicting criminal sanctions is contingent and, in principle, the state could be replaced by other agents, e.g., private individuals. This hypothesis has given rise to recent calls to reform the state's criminal justice system by introducing privately-inflicted sanctions, e.g., shaming penalties, private prisons or private probationary services. This paper challenges this view and argues that the agency of the state is indispensable to criminal sanctions in a way that renders the idea of replacing state-inflicted sanctions with privately inflicted sanctions not merely contingently undesirable. Privately-inflicted sanctions sever the link between state's judgments concerning the wrongfulness of the action and the appropriateness of the sanction and the infliction of sufferings on the criminal. When a private individual inflicts punishment she acts on what she and not the state judges to be a sufficient basis for action. Privately-inflicted sanctions for violations of criminal laws are not grounded in the judgments of the appropriate agent, namely the state. It is impermissible on the part of the state to approve a sanction inflicted on an alleged wrongdoer on the basis of such a private judgment. Such an approval grants undue weight to the private judgment of the individual who inflicts the sanction.
Harel, Alon, "Why Only the State May Inflict Criminal Sanctions" (2007). Comparative Research in Law & Political Economy. Research Paper No. 25/2007.