A man, carrying a gun in his waistband, robs a food vendor. In making his
escape, the gun discharges, critically injuring the robber. About such instances,
it is common to think, “he got what he deserved.” This Article seeks to explore
cases like that—cases of “natural punishment.” Natural punishment occurs
when a wrongdoer faces serious harm that results from her wrongdoing and not
from anyone seeking retribution against her. The Article proposes that U.S.
courts follow their peers and recogniz…
Read moreA man, carrying a gun in his waistband, robs a food vendor. In making his
escape, the gun discharges, critically injuring the robber. About such instances,
it is common to think, “he got what he deserved.” This Article seeks to explore
cases like that—cases of “natural punishment.” Natural punishment occurs
when a wrongdoer faces serious harm that results from her wrongdoing and not
from anyone seeking retribution against her. The Article proposes that U.S.
courts follow their peers and recognize natural punishment as genuine
punishment for legal, specifically constitutional, purposes. Were U.S. courts to
do so, they would need to reduce the amount of punishment they would otherwise
bestow on wrongdoers upon conviction if a natural punishment has occurred or
foreseeably will occur. A handful of foreign jurisdictions already accept
something like this Article’s proposal, but natural punishment has no formal legal
recognition in the United States. The goal of this Article is twofold: first, it offers
a rigorous and defensible definition of natural punishment by distinguishing it
from nearby notions and dispelling any association with supernatural ideas;
second, it demonstrates that recognizing natural punishment as genuine
punishment will not much disturb existing American legal institutions and
understandings.
As an added bonus, the concept of natural punishment can be employed to solve
a longstanding problem in criminal law theory, the Mystery of Credit for Time
Served. The Mystery surrounds the common practice of giving prisoners credit
toward their prison sentences for their time served in jail awaiting trial. The
Mystery poses a dilemma about whether the detention time was punishment: If
it was punishment, then the detainee was punished before trial in violation of
Due Process; however, if the time was not punishment, there is no reason to
discount the prison sentence. Seeing the time in detention as an instance of
natural punishment resolves the Mystery.