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1994 Wis. L. Rev. 123 (1994)
A Study of Internal Punishment

handle is hein.journals/wlr1994 and id is 139 raw text is: A STUDY OF INTERNAL PUNISHMENT CONNIE S. ROSATI In an effort to discover more effective ways to deter various kinds of criminal behavior, a number of judges have begun to explore 'creative sentencing alternatives. In this Article, I explore the most controversial such sentences-those which include as a condition of probation that the convicted undergo a non-fatal, physically invasive procedure, such as surgical or chemical castration or implantation with the birth control device Norplant. I argue that under carefully restricted conditions, sentences that include internal punishment' need not violate any moral rights of the convicted. On the contrary, such sentences would serve to enhance the autonomy and overall well- being of the convicted, while furthering those legitimate interests we have in choosing methods of sentencing. Thus, internal punishment is in principle morally defensible: it may be a rational choice from both the standpoint of the convicted and the standpoint of society, and it is justifiable only if rational from both standpoints. I consider various objections to internal punishment and argue that sentences that include it need not violate the principle of proportionality, do not constitute secondary discrimination, and can be voluntarily chosen. No current forms of internal punishment satisfy reasonable moral constraints, however, and I suggest that this fact, rather than an inherent difficulty with internal punishment, accounts for much of the opposition to sentences that include it. There are other grounds for worry about allowing such sentences that stem from concerns about our ability to insure that strict conditions on internal punishment can and will be observed in practice. While such concerns might well provide us with reasonable grounds for electing not to develop forms of internal punishment, we ought not to be deterred by the worry that internal punishment will necessarily violate the rights of the convicted. In an effort to find more effective ways to deter various kinds of criminal behavior, a number of judges have begun to explore creative sentencing alternatives.' The most controversial of these sentences have included, as a condition of probation, that the convicted undergo a non-fatal, physically invasive procedure-what I will call internal punishment.2 In a recent criminal case, for instance, a repeat offender * Assistant Professor of Philosophy, Northwestern University. B.A. 1979, Michigan State University; Ph.D. Philosophy 1989, Udiversity of Michigan. An earlier version of this Article was presented on April 23, 1993 at the Central Division Meetings of the American Philosophical Association. I would like to thank members of the audience for their constructive comments. I would also like to thank John Deigh, Margaret Holmgren, Doug Husak, Don Korobkin, Annemarie Pace, and O.A. Robinson for helpful comments on various versions of this Article. 1. For a discussion of some of these sentences, see Jon A. Brilliant, Note, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 DUKE L.J. 1357, 1357-85. 2. As I have characterized internal punishment, capital punishment is not included because it is fatal. I have deliberately defined 'internal punishment' so as to exclude capital punishment so that we can examine the acceptability of a distinctive type of alternative sentencing without becoming embroiled in difficult moral questions about the

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