Raff Donelson (Penn State Law) has published "Natural Punishment" on SSRN. Here is the abstract:
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 US courts follow their peers and recognize natural punishment as genuine punishment for legal, specifically constitutional, purposes. Were US 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, and, 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. Surprisingly, seeing the time in detention as an instance of natural punishment resolves the Mystery.
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