I have a paper forthcoming in the peer-reviewed journal, Legal Theory, entitled "Unintentional Punishment." You can download the draft for free here. It's not a neuroethics paper, strictly speaking, but it connects up with some of my prior neuroethics-related work on The Experiential Future of the Law and The Subjective Experience of Punishment.
Here is the abstract:
Theorists overwhelmingly agree that in order for some conduct to constitute punishment, it must be imposed intentionally. Some have argued that a theory of punishment need not address unintentional aspects of punishment, like the bad experiences associated with incarceration, because such side effects are not imposed intentionally and are, therefore, not punishment.
In this essay, I explain why we must measure and justify the unintended hardships associated with punishment. I argue that our intuitions about punishment severity are largely indifferent as to whether a hardship was inflicted purposely or was merely foreseen. Moreover, under what I call the “justification symmetry principle,” the state must be able to justify the imposition of the side effects of punishment because you or I would have to justify the same kind of conduct. Therefore, any justification of punishment that is limited to intentional inflictions cannot justify a punishment practice like incarceration that almost always causes side effect harms.